Publication 5774 (3-2023)

Publication 5774 (3-2023) Catalog Number 93908N Department of the Treasury Internal Revenue Service publish.no.irs.gov

Entertainment

Audit Technique Guide

This document is not an official pronouncement of the law or the position of the Service and cannot be

used, cited, or relied upon as such. This guide is current through the revision date. Since changes may

have occurred after the revision date that would affect the accuracy of this document, no guarantees are

made concerning the technical accuracy after the revision date.

The taxpayer names and addresses shown in this publication are hypothetical.

Audit Technique Guide Revision Date: 3/20/2023

Table of Contents

I. Overview ............................................................................................ 16

A. Background / History ................................................................... 16

A.1. Unions and Guilds ............................................................ 17

A.2. Reimbursements .............................................................. 17

A.3. Copyrights ........................................................................ 18

A.4. Period Covered ................................................................. 18

A.5. Copyright Infringement .................................................... 19

A.6. Receiving Income ............................................................. 19

B. Relevant Terms ............................................................................ 20

B.1. Abbreviations .................................................................... 20

B.2. General Terms .................................................................. 20

B.3. Music Terms...................................................................... 22

II. Planning the Audit ............................................................................. 26

A. General Approach to the Interview ............................................. 26

A.1. Information to Obtain ....................................................... 26

A.2. Allocation of Personal Expenses .................................... 26

A.3. Recordkeeping .................................................................. 27

B. Self-Employment Tax Considerations ........................................ 27

C. Employee Versus Independent Contractor ................................ 28

D. Audit Techniques ......................................................................... 29

E. Non-Filers ..................................................................................... 30

III. Income Issues.................................................................................... 30

A. Residuals ...................................................................................... 30

B. Royalties and License Fees ........................................................ 30

C. Fringe Benefits ............................................................................. 31

D. Advances ...................................................................................... 31

E. Reconstruction of Income ........................................................... 33

IV. Capitalization and Cost Recovery Issues ........................................ 33

A. Capitalization Issues ................................................................... 33

A.1. IRC § 195 – Start-Up Expenditures .................................. 34

A.2. IRC § 197 – Amortization of Goodwill and Certain Other

Intangibles .............................................................................. 34

A.3. IRC § 263A – Capitalization and Inclusion in Inventory

Costs of Certain Expenses .................................................... 34

A.4. Costs Required to be Capitalized by Producers –

Treas. Reg. § 1.263A-2(a)(3)(i) ............................................... 35

A.5. Pre-Production Costs – Treas. Reg. § 1.263A-2(a)(3)(ii) 36

A.6. Post-Production Costs – Treas. Reg. § 1.263A-2(a)(3)(iii)

A.7. IRC § 263A(h) - Exemption for Free Lance Authors,

Photographers, and Artists ................................................... 36

A.8. IRC § 263A(i) - Exemption for Certain Small Businesses

A.9. Payment of Advances and Royalties .............................. 37

B. Cost Recovery Issues .................................................................. 38

B.1. Placed in Service .............................................................. 38

B.2. Elective Safe Harbor - Notice 88-62 ................................. 39

B.3. Internal Revenue Code § 181 ........................................... 40

B.4. Income Forecast Method ................................................. 42

B.5. IRC § 167(g)(8) – Special Rules For Certain Musical

Works and Copyrights (Expired) ........................................... 43

B.6. Abandonment Loss .......................................................... 43

B.7. Revenue Procedure 2004-36 ............................................ 45

C. Exhibit 4-1 - Decision Path for Capitalization ............................ 45

V. Passive Activity Issues ..................................................................... 47

A. IRC § 469....................................................................................... 47

B. Rental of Equipment .................................................................... 48

B.1. Identifying the Issue ......................................................... 48

B.2. Law .................................................................................... 48

B.3. What are the exceptions to the rental definition? .......... 48

B.4. Audit Techniques ............................................................. 49

C. Royalty Income ............................................................................ 49

C.1. Identifying the Issue ......................................................... 49

C.2. Law .................................................................................... 49

C.3. Audit Techniques ............................................................. 50

D. Other Activities ............................................................................ 50

D.1. Identifying the Issues ....................................................... 50

D.2. Law .................................................................................... 51

D.3. Audit Techniques ............................................................. 51

E. Conclusion ................................................................................... 52

VI. Travel and Transportation Issues .................................................... 52

A. Travel ............................................................................................ 53

A.1. Tax Home .......................................................................... 53

A.2. Employment Related Travel ............................................. 54

A.3. Domestic Travel ................................................................ 54

A.4. Foreign Travel ................................................................... 54

B. Transportation ............................................................................. 55

VII. Recordkeeping Issues ...................................................................... 56

A. Meals, Entertainment, and Gifts .................................................. 56

A.1. Meals and Entertainment ................................................. 56

A.2. Gifts ................................................................................... 57

B. Educational and Research Expenses ......................................... 57

C. Telecommunication Expense ...................................................... 59

VIII. Personal Expense Issues ............................................................ 59

A. Keeping Current ........................................................................... 59

A.1. Cable TV ............................................................................ 59

A.2. Movies and Theatre .......................................................... 60

A.3. Appearance and Image .................................................... 60

A.4. Wardrobe ........................................................................... 61

A.5. Make-up ............................................................................. 61

A.6. Physical Fitness ............................................................... 61

A.7. Security ............................................................................. 61

B. Court Cases .................................................................................. 61

IX. Other Issues ...................................................................................... 63

A. Office In The Home ...................................................................... 63

A.1. Principal Place of Business ............................................. 63

A.2. Deductible Amount ........................................................... 64

A.3. The Simplified Method – Calculating the Home Office

Deduction under Rev. Proc. 2013-13 ..................................... 64

A.4. Employees ........................................................................ 64

A.5. Personal Service Corporation ......................................... 64

A.6. Multiple Business Activities ............................................ 65

B. Activities Not Engaged In For Profit ........................................... 65

C. Job Search ................................................................................... 65

C.1. Photo and Video Resumes............................................... 65

C.2. Demos ............................................................................... 66

D. Showcasing .................................................................................. 66

D.1. Actors, Directors, Producers ........................................... 66

D.2. Comedians ........................................................................ 67

D.3. Musicians .......................................................................... 67

E. Agents .......................................................................................... 67

E.1. Fees and Commissions .................................................... 67

F. Moving Expenses ......................................................................... 68

F.1. Distance Test .................................................................... 68

F.2. Time Test ........................................................................... 68

G. Personal Service Companies and Personal Holding Companies

X. Music Business ................................................................................. 69

A. General Information ..................................................................... 70

B. Digital Music ................................................................................. 73

C. Downloads .................................................................................... 73

C.1. General Questionnaire: .................................................... 76

D. Music Industry Research and Publications ............................... 77

D.1. Trade Magazines ............................................................... 77

D.2. Books ................................................................................ 77

D.3. Other Source Books ......................................................... 78

E. Music Industry Organizations ..................................................... 78

E.1. Unions and Guilds (listed in alphabetical order) ............ 78

E.2. Trade Associations........................................................... 79

E.3. Performing Rights Organizations .................................... 80

XI. Songwriters ....................................................................................... 81

A. Recordkeeping ............................................................................. 82

B. Examination Plan ......................................................................... 82

C. Audit Issues ................................................................................. 83

C.1. Gross Income and Capital Items ..................................... 83

C.2. Expenses ........................................................................... 83

C.3. Self-Employment Tax Issues ........................................... 84

C.4. Related Returns ................................................................ 84

D. Songwriters' Questionnaire ........................................................ 84

XII. Publishers .......................................................................................... 86

A. Recordkeeping ............................................................................. 86

B. Examination Plan ......................................................................... 87

C. Audit Issues ................................................................................. 87

C.1. Gross Income .................................................................... 87

C.2. Expenses ........................................................................... 87

C.3. Employment Taxes ........................................................... 88

D. Publishers Questionnaire ............................................................ 88

XIII. Live Performers............................................................................ 90

A. Stars .............................................................................................. 90

B. Other Performers ......................................................................... 90

C. Recordkeeping ............................................................................. 90

C.1. Stars .................................................................................. 90

C.2. Other Performers .............................................................. 91

D. Examination Plan ......................................................................... 91

E. Audit Issues ................................................................................. 92

E.1. Gross Income .................................................................... 92

E.2. Expenses ........................................................................... 92

E.3. Employment taxes ............................................................ 93

E.4. Related returns ................................................................. 93

E.5. Specialists ......................................................................... 93

F. Live Performers Questionnaire ................................................... 93

G. Employment Tax Questions: ....................................................... 94

G.1. "Stars" ............................................................................... 94

G.2. "Band Members, Road Crew" .......................................... 94

XIV. Producers ..................................................................................... 94

A. Recordkeeping ............................................................................. 96

B. Examination Plan ......................................................................... 96

C. Audit Issues ................................................................................. 96

C.1. Gross Income .................................................................... 96

C.2. Expenses ........................................................................... 97

C.3. Travel and entertainment expenses ................................ 97

C.4. Capital expenses .............................................................. 97

C.5. Employment taxes ............................................................ 97

C.6. Royalties ........................................................................... 98

C.7. Related returns ................................................................. 98

C.8. Use of specialists ............................................................. 98

D. Producers Questionnaire ............................................................ 98

D.1. Employment Tax Questions ............................................. 99

XV. Managers .................................................................................... 100

A. Recordkeeping ........................................................................... 101

B. Examination Plan ....................................................................... 101

C. Audit Issues ............................................................................... 101

C.1. Gross Income .................................................................. 102

C.2. Expenses ......................................................................... 102

C.3. Employment Taxes ......................................................... 102

C.4. Related Returns .............................................................. 102

D. Management Questionnaire ...................................................... 102

XVI. Videos ......................................................................................... 103

A. Recordkeeping ........................................................................... 103

B. Examination Plan ....................................................................... 104

C. Audit Issues ............................................................................... 104

D. Videos Questionnaire ................................................................ 105

D.1. Employment Tax Questions ........................................... 105

XVII. Employment Tax ........................................................................ 106

A. Employees – Household Employees ........................................ 107

XVIII. Overview of Common Issues in the Entertainment Industry

108

A. Performing for Compensation - Income Issues ....................... 108

A.1. Trade or Business vs. Hobby ........................................ 109

A.2. Facts and Circumstances Test ...................................... 109

A.3. IRC § 183 Limits Deductions .......................................... 109

A.4. Case Law Intensely Factual ........................................... 109

B. Employee vs. Independent Contractor ..................................... 109

B.1. Significance of the Issue ................................................ 109

B.2. For the Employer ............................................................ 110

B.3. For the Worker ................................................................ 110

B.4. Statutory Classification .................................................. 110

B.5. Common Law Analysis .................................................. 110

B.6. Employee Status is the Norm ........................................ 111

B.7. Application of Facts and Law ........................................ 111

C. Personal Service ("Loan Out") Corporations (PSC) ................ 112

C.1. Background .................................................................... 112

C.2. Applicable Law ............................................................... 112

D. Residuals, Royalties, Other Income ......................................... 113

D.1. Residuals ........................................................................ 113

D.2. Royalties, License Fees ................................................. 113

D.3. Fringe Benefits, Goods for Services ............................. 114

D.4. Excessive Per Diem ........................................................ 114

D.5. Miscellaneous ................................................................. 114

E. Fact: Most Expenses Are Reimbursed/Reimbursable by the

Employer .................................................................................... 115

E.1. No Deduction Without Proof .......................................... 115

E.2. Travel ............................................................................... 115

E.3. Deduction controlled by IRC § 274 ................................ 115

E.4. Away from Home ............................................................ 116

E.5. Local Travel .................................................................... 117

F. Wardrobe, Make-Up, Etc. ........................................................... 117

F.1. Substantiation ................................................................. 117

F.2. Business Versus Personal ............................................. 118

F.3. Gratuities, Gifts, Etc. ...................................................... 118

G. Education, Coaching, Special Training .................................... 118

H. Agents' and Managers' Fees ..................................................... 118

I. Searching for Work .................................................................... 119

I.1. Promotional Materials, Resumes, Photographs, Etc. ........ 119

I.2. IRC § 162 Deduction Is Probably Okay ............................... 119

I.3. Get Substantiation ................................................................ 119

I.4. Auditions, Screen Tests ....................................................... 119

I.5. Travel Between Auditions Is Deductible ............................. 119

I.6. Substantiation ...................................................................... 119

I.7. Travel ..................................................................................... 119

I.8. Telephone ............................................................................. 119

I.9. Unique Expenditures ............................................................ 120

I.10. Entertainment, Gifts, etc., Claimed in Connection with

Looking for Work .................................................................. 120

J. Union and Guild Dues ............................................................... 120

K. Maintaining Skills, Image, Position, Etc. .................................. 120

K.1. Public Relations, Promotion, Publicity ......................... 120

K.2. Publicity Manager, PR Firm, etc. ................................... 121

K.3. Deduction Controlled by IRC § 274(d) ........................... 121

K.4. Compensation Paid to Managers and Others ............... 121

K.5. Agent, Personal Manager, Other Professionals ........... 121

K.6. Coach, Personal Trainer, Guru ...................................... 122

L. IRC § 262 Take Precedence over IRC § 162 ............................. 122

L.1. Taxpayers Have the Burden of Proof ............................ 122

L.2. Taxpayers Rarely Can Carry Their Burden ................... 122

M. Bodyguards, Security Services ................................................ 122

M.1. Bodyguard ...................................................................... 123

M.2. Home Security ................................................................ 123

N. Specific Items May Be Business-Related ................................. 123

N.1. Keeping Up Skills, Status, Image, etc. .......................... 123

N.2. TV, Movies, Theatre, Cable TV Expenses ..................... 123

N.3. Everyday Items ............................................................... 123

N.4. Specific Occasions ......................................................... 124

N.5. Limits ............................................................................... 124

N.6. Screenings ...................................................................... 124

O. Ongoing Training to Keep Up Skills ......................................... 124

O.1. Who Is Eligible ................................................................ 124

O.2. What is Eligible ............................................................... 124

P. Cost of Owning and Maintaining Airplane, Motorcycle, Horses

125

P.1. Background .................................................................... 125

P.2. Listed Property ............................................................... 126

P.3. Identify the taxpayer's exact trade/business ................ 126

P.4. Employee (Form 2106 for unreimbursed expenses) .... 127

P.5. Schedule C Deductions .................................................. 127

P.6. "Qualified business use" limitation on depreciation ... 127

P.7. Personal Services Corporation ..................................... 128

Q. Physical Fitness ......................................................................... 128

R. Wardrobe .................................................................................... 129

R.1. Lenient Policy ................................................................. 129

R.2. Current Standards .......................................................... 129

R.3. Working Conditions Hard on Clothes; Need More

Frequent Replacement ......................................................... 130

R.4. Care of Wardrobe ........................................................... 130

R.5. Adequate Proof: Substantiation and Documentation .. 130

S. Grooming and Other Personal Items ........................................ 130

S.1. Make-up, Haircuts ........................................................... 130

S.2. Toupee ............................................................................. 130

S.3. False Teeth, Hearing Aids, etc. ...................................... 131

T. Business-related Medical Expenses ........................................ 131

U. Extravagance, in General .......................................................... 131

U.1. Not Limited to Lowest Price ........................................... 131

U.2. Compensation for Services ........................................... 132

U.3. Exception: Lavish Food and Drink ................................ 132

U.4. Amount May Indicate Motives ....................................... 132

U.5. Use of Home for Business Purposes ............................ 132

U.6. Home Office Deduction .................................................. 132

U.7. Result May Depend on Status of Taxpayer ................... 133

U.8. Corporate Taxpayer ........................................................ 133

U.9. "Listed Property" IRC § 280F ......................................... 133

V. Miscellaneous ............................................................................ 133

V.1. Uniform Capitalization Rules ......................................... 133

V.2. Special Treatment ........................................................... 134

V.3. Who Is Eligible ................................................................ 134

V.4. “Qualified Creative Expenses" ...................................... 134

V.5. "UNICAP" - Earlier Years ............................................... 134

I. Overview

(1) The purpose of this Entertainment Audit Technique Guide (ATG) is:

• To provide an overview of the activities encountered in examinations of

individuals in the entertainment industry.

• To familiarize examiners with issues and terminology pertinent to

individuals in the entertainment industry.

• To assist examiners with their examinations by providing audit

techniques.

(2) This ATG should help reduce the time needed to examine returns of individuals

in the entertainment industry by providing some background on the industry and

the applicable tax law. While this guide covers a variety of situations and

issues, it is not all-inclusive.

A. Background / History

(1) This audit technique guide is designed to provide assistance in auditing

individuals in various aspects of the entertainment industry. The issues need to

be developed in relation to the taxpayer's trade or business. Sometimes it is a

challenge to determine the exact nature of the taxpayer's profession. It is,

therefore, necessary to look beyond the job title and determine the actual duties

and responsibilities of the taxpayer.

(2) At one time, an individual's job title clearly denoted the duties associated. Now,

there is a great deal of crossover between job titles. In the early years of film

making, the director was under the control of the producer and had complete

control of the actors, editors, etc. Now, many actors have creative control.

Directors may have creative control. Editors may work directly under the control

of the producer and independent of the director.

(3) Individuals can function in different job titles on different projects. A taxpayer

may be a property master on one project and a "prop man," assistant property

master, or a set dresser on another. Many actors are also directors or

producers, sometimes on the same project. It is, therefore, critical to determine

the duties of a taxpayer in regard to each project. This will be important in

determining which expenses are ordinary and necessary.

(4) In the film industry, employees are categorized as "above the line" or "below the

line." Above the line employees are thought of as creative talent, while below

the line generally refers to technicians and support services (although it

includes set designers and artists). The "line" is an accounting demarcation

used in developing the budget for production. Some above the line costs are

incurred even before a film goes into the production stage. Above the line costs

include the story rights, the screen play, the producer, the director, and the

principal cast. Generally, during the "pre-production" period, the expense for the

principal cast is negotiated, but the cost of the story rights are actually paid.

(5) This audit technique guide covers performers, producers, directors, technicians,

and other workers in the film industry, the recording industry, and live

performances. The same general rules apply and the same issues are found on

most of these returns. While working in the entertainment industry, taxpayers

are involved in performing for compensation, searching for work through

auditions or any other reasonable means of attaining employment, or

maintaining their position (skills, image, etc.) through reasonable expenditures

for education, training, public relations, etc.

(6) Historically, taxpayers in the entertainment industry tend to be aggressive or

abusive when deducting expenses that may or may not be related directly to

their business activities (i.e., personal expenses). Our goal is to bring the

allowable deductions back within the confines of the Code. The distinction

between ordinary/necessary and extravagant must be more clearly drawn.

• Note that the 2017 Tax Cuts and Jobs Act (TCJA) PUB. L. No. 115-97

eliminated miscellaneous itemized deductions under IRC § 67(g) for tax

years 2018-2025. However, a Qualified Performing Artist as defined by

IRC § 62(b)(1)) and accompanying regulations may still deduct certain

expenses if they meet the statutory and regulatory criteria. For

information regarding Qualified Performing Artists, see Chapter 2,

section titled Audit Techniques.

A.1. Unions and Guilds

(1) The entertainment industry has numerous unions and guilds. Each of these

organizations has entered into a collective bargaining agreement on behalf of

its members. These agreements or contracts address rates of compensation,

reimbursements, allowances, hours required to be worked, materials to be

provided, etc. Prominent performers and creative talents may negotiate

additional terms for each project on which they work to supplement the union or

guild contract (or have their attorney or business manager negotiate these

items). Issues not addressed in these individual contracts are determined on

the basis of the underlying union or guild contract.

(2) When an individual is a member of a guild or union (i.e., pays dues), we can

generally assume that individual is entitled to the benefits of the union/guild

contract for the year(s) under examination. In the absence of any verification to

the contrary, all reimbursements and benefits provided for in the contract will be

deemed available to the taxpayer.

A.2. Reimbursements

(1) When entertainment industry taxpayers work on union productions, their

respective contracts typically require allowances or reimbursement

compensation. Taxpayers claiming otherwise should prove they were not

entitled to allowances, reimbursements, or compensation under their applicable

contract. The major unions (SAG, DGA, etc.) have contracts that provide for

extensive reimbursement and compensation for the more common expenses

such as travel and meals. Many other expenses commonly seen are covered by

the contracts as well (e.g., physical trainers; offices; security; travel and related

expenses for spouses, significant others, children; etc.).

(2) Taxpayers who claim a production was non-union must provide a copy of their

contract with the producer or other proof.

(3) Frequently, taxpayers claim that although expenses were reimbursable under

the contract, they did not claim reimbursement because they feared they might

not be hired for future projects. The IRS position is, nevertheless, that if the

taxpayer could have received reimbursement, the expense is not deductible

even if the reimbursement is not claimed. See Kennelly v. Commissioner, 56

T.C. 936, 943 (1971), aff'd, 456 F.2d 1335 (2d Cir. 1972).

(4) If the expense exceeds the potential reimbursement, the excess expense may

be allowable if it is necessary. The most common example is the auto expense.

If the taxpayer claims actual expenses, the expense can be reduced by the

mileage reimbursement available (whether or not claimed from the employer)

and the remainder may still be allowed as a deduction.

(5) When the taxpayer is entitled to stay in a hotel that would be paid for by the

employer but chooses to stay at another hotel at his own expense, the excess

expense is not considered necessary. Personal preference is not a valid

business reason to incur an otherwise unnecessary expense.

(6) See Chapter 3, section titled Fringe Benefits, for information on IRC § 62(c)

when reimbursement can create income.

A.3. Copyrights

(1) An implied copyright is automatically created as soon as a copyrightable item is

created. This protects the creative talent from having his or her work stolen.

This applies to screenplays, scripts, compositions, etc. Additionally, finished

works are generally protected by a formal copyright. The following materials

may be copyrighted:

• Literary works

• Musical works, including any accompanying words

• Dramatic works, including any accompanying music

• Pictorial and graphic works

• Motion pictures and other audiovisual works

• Sound recordings

(2) An idea or concept cannot be copyrighted. The copyright covers the artistic

interpretation or specific treatment of the concept.

A.4. Period Covered

(1) Any copyright, the first term of which was in existence prior to January 1, 1978,

endures for 28 years from the date it was originally secured. Copyrights

registered before January 1, 1978, can be renewed to endure for 95 years from

the date the copyright was originally secured. In general, a copyright on a work

created on or after January 1, 1978, lasts for the life of the author and 70 years

after the author's death (with no renewal), or 120 years for corporate

authorship.

A.5. Copyright Infringement

(1) The use of copyrighted material without permission is an infringement of the

owner's copyright. The copyright is an exclusive right which covers copying,

reproducing, printing, reprinting, and publishing copyrighted works. It also

covers the use of copyrighted material in audiovisuals.

A.6. Receiving Income

(1) When copyrighted material is used, reproduced, or adapted to another medium,

permission must be obtained. This generally results in royalties being paid to

the copyright holder, fees being paid for the granting of a license, or the selling

of an option. This income to the copyright holder is taxable. Royalty income is

not passive per IRC § 469(e)(1)(A).

(2) If the taxpayer was regularly engaged in the trade or business that generated

the royalty, when received by the taxpayer, the income is considered self-

employment income and is subject to self-employment tax. See Treas. Reg. §

1.1402(a)-1(c); Rev. Rul. 68-498, 1968-2 C.B. 377 (discussing a writer who

wrote many books and hence qualified to pay self-employment tax).

(3) Revising prior editions of a work one had created could also be sufficient to

constitute a trade or business and the income would therefore be subject to

self-employment tax. See Langford v. Commissioner, T.C. Memo. 1988-300,

aff'd, 881 F.2d 1076 (6th Cir. 1989).

(4) However, if the taxpayer was not engaged regularly in the trade or business

that generated the royalty, then it is not subject to self-employment tax. See

Langford v. Commissioner, T.C. Memo. 1988-300, aff'd, 881 F.2d 1076 (6th Cir.

1989). For example, "[i]f an individual writes only one book as a sideline and

never revises it, he would not be considered to be 'regularly engaged' in an

occupation or profession and his royalties therefrom would not be considered

net earnings from self-employment." Rev. Rul. 68-498, 1968-2 C.B. 377.

(5) The payer has an expense for the purchase of the option, fees for the granting

of a license, or the payment of royalties. This expense would typically be

subject to capitalization as a production expense.

(6) In K. Slaughter v. Commissioner, T.C. Memo. 2019-65, the court affirmed that

there was a direct nexus between petitioner’s brand and her trade or business

of writing such that her royalty income from publishing contracts was subject to

self-employment tax.

B. Relevant Terms

B.1. Abbreviations

(1) AEA – Actors Equity Association

(2) AFI – American Film Institute

(3) AFM – American Federation of Musicians

(4) AFTRA and SAG have merged to SAG-AFTRA AGVA – American Guild of

Variety Artists

(5) AICP – Association of Independent Commercial Producers, Inc.

(6) AMPAS – Academy of Motion Picture Arts and Sciences

(7) ASCAP – American Society of Composers, Authors, and Publishers

(8) BMI – Broadcast Music Inc.

(9) CMA – Country Music Association DGA Director's Guild of America GMA

Gospel Music Association

(10) IATSE – International Alliance of Theatrical and Stage Employees

(11) NAB – National Association of Broadcasters

(12) NARAS – National Academy of Recording Arts and Sciences

(13) NARM – National Association of Record Merchandisers - NARM is now the

Music Business Association which they abbreviate as MusicBiz, not as MBA

(14) PGA – Producer's Guild of America

(15) RIAA – Recording Industry Association of America

(16) SAG – Screen Actors Guild - AFTRA American Federation of Television and

Radio Artists.

(17) WGA – Writer's Guild of America

B.2. General Terms

(1) Advance – A fee paid to an artist prior to completion of a production to be

recovered later out of royalties earned.

(2) Artists and Repertoire – Department of a recording company responsible for

acquiring new talent – includes everything up to the point of album release, not

just acquisition of new talent.

(3) Audition – A short performance to demonstrate a performer's talent, generally in

an attempt to be hired for a production.

(4) Best Boy – Second in command of either electrical operations or camera and

lighting movement or placement. The Gaffer (works under the Director of

Photography) is the head electrician responsible for lighting design and the Best

Boy Electric is his assistant or foreman. The Key Grip (also under the DP -

Director of Photography) is in charge of grip (dollies, cranes, etc.) and his

assistant is also called the Best Boy Grip.

(5) Billboard – A leading trade industry magazine whose "charts" are used

extensively in the recording industry.

(6) Bootlegging – The illegal recording of an artist without permission.

(7) Box Rent – Also called Kit Rental. Payments made to individuals for the use of

personally owned tools. This term includes make-up kits and supplies,

carpenter tools, etc. These payments are generally not included in wages but

are separately stated on a Form 1099.

(8) Chart – Listing of recordings according to their relative popularity.

(9) Collective Bargaining Agreement – A negotiated contract between

representatives of organized workers and their employers, which determines

wages, hours, and working conditions.

(10) Copyright – The right to exclude others from reproducing a literary, musical,

dramatic, or artistic work.

(11) Counterfeiting – Illegal practice of copying a recording (tape, record, etc.) and

selling the copies as originals.

(12) Demographic – A statistical representation of an audience segment; section of

an audience sharing a common characteristic.

(13) Director – Supervises and guides the actors in a production.

(14) Distributor – Involved in the marketing of a film product in any of the media

including theaters and television. Often, films have domestic and international

distributors.

(15) Editor – Prepares a production for presentation by cutting and combining

selected film shots and soundtracks.

(16) Emmy – An achievement award given annually by the American Federation of

Television and Radio Artists: awarded by the Academy of Television Arts and

Sciences (primetime), the National Academy of Television Arts and Sciences

(tech, sports, daytime, and news) and the International Academy of Television

Arts and Sciences (international).

(17) Exploitation – Marketing of a project or talent for profit.

(18) Extra – Performer in a minor role, generally without solo speaking. Also called

"atmosphere player".

(19) Free Goods – Recordings supplied by manufacturers at no charge as an

incentive for sales.

(20) Gaffer – Electrician with responsibility for lighting on a set.

(21) Grammy – An achievement award given annually by the National Academy of

Recording Arts and Sciences.

(22) Grand Rights – A license issued by a copyright holder for use of the copyrighted

material in musical drama.

(23) Grip – Stagehand.

(24) Guild – An alliance of persons of the same trade.

(25) Key Grip – Responsible for all functions pertaining to camera movement

required on a set

(26) Kit Rental – See Box Rental

(27) License – Agreement granting the right to use a copyright owned by the grantor.

(28) Location – Site where picture is shot, other than the studio.

(29) Master – The original finalized film, video, or audio recording, from which copies

are made.

(30) Needle Drop – Fee paid to music suppliers for using their music as background.

It can also refer to a soundtrack when it is interrupted by a recorded song.

(31) Nielsen Audio – A radio ratings service

(32) Oscar – An achievement award given annually by the Academy of Motion

Picture Arts and Sciences (AMPAS).

(33) Payola - Illegal giving or receiving of any gratuity to obtain favorable radio or

television airplay. Also refers to the gratuity itself.

(34) Producer – Finances and supervises the overall production of a film, video,

audio recording, or live performance.

(35) Residuals – Payments required, to writers, directors, or actors, from

rebroadcast, or exploitation in a secondary market, of a recorded production.

(36) Royalties – Payments to an author or composer from the proceeds of a sale or

performance of his/her work.

(37) Scale – The minimum fee stated in the union contract for work done in a

particular job category.

(38) Showcase – A setting to display a performer's or a director's talent.

(39) Union – An alliance for mutual interest or benefit.

B.3. Music Terms

(1) Musicians Business Dictionary – Website with music definitions

(2) Advance – A fee paid to an artist as part of the royalty compensation package.

(3) A and R (Artists and Repertoire) – Department of record company responsible

for talent acquisition.

(4) AM – In electronic communications, a type of radio station whose signal is

encoded by modifying the amplitude of its carrier wave (as opposed to an FM

signal which modifies the frequency). Because AM also amplifies static, it is

typically used for talk and not for hi-fidelity music.

(5) ANALOG – The electronic representation of a sound wave as a physical copy.

The term refers more to the type of representation of the sound wave.

Specifically, differs from digital in that the electronic representation varies

continuously whereas digital is represented by finite packets.

(6) AOR – Album Oriented Rock - A radio program usually consisting of various

selections from rock albums. The meaning has morphed now into what's called

"classic rock". It began when FM was new and radio stations were prohibited

from playing the same material used by their sister AM stations.

(7) Billboard – A leading trade industry magazine whose charts are used

extensively.

(8) Bootlegging – The illegal practice of recording an artist without permission and

then offering the recording for sale.

(9) C.D. Compact Disc – A format for recordings using electronic digital technology.

(10) Chart – Trade newspaper listing of records according to their relative popularity.

Charts are an important barometer of a record's success.

(11) CHR Contemporary Hit Radio – A radio programming scheme much like Top

40. Popular as an antidote to payola by forcing DJ's to play a particular playlist.

As of 2014, it refers to stations that still play the most popular music of the day

across genres.

(12) Contractor – The person, required by union contracts, to hire performers. This

applies to singers and the rate is either 50% or 100% more than scale

depending on the number of singers.

(13) Cooperative Advertising-coop – An advertising scheme wherein a record

company will share advertising costs of a product with a retailer. This becomes

shared advertising with mutual benefits.

(14) Counterfeiting – The illegal practice and process of copying a CD and then

offering the copies for sale as originals.

(15) Creative Services – Department within a record company responsible for album

covers, posters and other visual sales tools.

(16) Cross-collateralization – A clause within recording contacts allowing the profits

from each successful recording to be used to pay for the expenses of

unsuccessful recordings under the same contractual arrangement.

(17) Crossover – A record intended for a specialized audience but finds success

with other such audiences.

(18) Cut out – A record or tape that has reached the sales saturation in the

marketplace. These items are then sold at tremendous discounts to dealers

with the expectation that additional profit will be realized after the maximum of

new record sales point.

(19) D.A.T. – Digital Audio Tape - A high quality recording/playback technology

which uses pulse- code modulation to encode information onto a tape.

(20) DBS – Direct Broadcast Satellite - A method of program distribution which uses

a high power satellite to transmit a signal to a highly defined coverage area.

Refers to the satellites that services such as Dish, DirectTV, and Sirius/XM use

in addition to many others serving other parts of the world.

(21) DeFacto Network – A broadcast scheme wherein independent broadcast

stations, not affiliated with a dedicated network, provide access to program

suppliers for limited times. There are network-owned stations and affiliates in

TV.

(22) Demographic – A statistical representation of an audience segment; section of

an audience sharing a common characteristic.

(23) Digital – In recording and playback the technology wherein the

encoded/decoded information is represented as a binary code, series of ones

and zeros.

(24) Doubling – A recording technique which requires a musician or singer to

perform the same music twice on a different recording track ("double tracking"):

this means recording the same part twice to get a richer sound when they are

superimposed.

(25) Electromagnetic recording – The process in which program material is

magnetically encoded onto a medium usually magnetic tape.

(26) FCC (Federal Communications Commission) – Government agency

responsible for licensing all radio, television, satellite, and telephone

communications.

(27) FTC (Federal Trade Communication) – Government agency responsible for

regulation of interstate commerce.

(28) F. M. (Frequency Modulation) – See A.M.

(29) Free Goods – Records supplied by manufacturers at no charge as an incentive

for sales. As with cut outs, there are no royalties.

(30) Freelancer – A writer or an artist who sells his services to employers without a

long-term commitment to any one of them.

(31) Grand Rights – A license issued by a copyright holder for use of the copyrighted

material in musical drama.

(32) Grammy – Award given annually by NARAS.

(33) House Producer – A producer who is usually an employee of a record

company.

(34) Independent Recording Company – A recording company that does not provide

full manufacturing and distribution services. Specifically, a record company not

owned by a major company (Universal, Sony, and Warner): they may affiliate

with one of them for distribution or they may contract for distribution

independently.

(35) Independent Promotion Person – Free-lance professional used by companies

to augment its own staff.

(36) Independent Producer – Free-lance creative production executive hired by

companies on a project-by-project basis.

(37) Jukebox – A coin operated electronic record/CD player.

(38) List price – The retail price of a project.

(39) Master – The finished production reduced to digital format. Subsequent copies

are made in several formats for resale.

(40) Mechanical – A license given by a copyright owner authorizing the reproduction

of music.

(41) Mom and Pop – A very small retail outlet.

(42) Needle drop – A fee assessed by music supplier for using their music as

background.

(43) Nielsen Audio – A radio ratings service.

(44) One Stop – A sub-distributor whose clients are usually smaller record retail

outlets and jukebox operators.

(45) P and D (Pressing and Distribution) – An arrangement between large and small

companies wherein the large company will provide these services to the smaller

one for a fee. Alternatively, the artist could contract for the manufacturing but

retain the rights and costs of everything else.

(46) Payola – The illegal giving or receiving of any gratuity to obtain favorable radio

or television air play.

(47) Rack Jobber – A music merchandiser responsible for selling records in non-

music outlets. They rent floor space in larger stores (Walmart, etc.) and stock

the racks themselves.

(48) Returns – Unsold CDs sent back to manufacturers for cash credit to buyer's

account.

(49) Royalties – A contractual payment to an artist or producer representing a

percentage of all actual record sales.

(50) Sampling – An electronic digital process in which an original analog sound is

converted to a binary code for later playback in an electronic storage device

e.g. using another artist's material in a new recording.

(51) Scale – A fee assessed by unions on behalf of its members representing the

minimum payment to be charged for work.

(52) Top 40 – A radio music programming technique wherein a station restricts the

records it plays to a limited number -40 records- with each given exposure

based upon its popularity. This doesn't necessarily refer to only 40 songs

anymore but to playing what is popular.

(53) UPC (Universal Product Code) – An identifying mark on packaging which is

used by digital scanning devices for inventory control.

(54) Wholesale – The price manufacturers charge for a product to its distributors.

This price represents the manufacturers expense in producing the product plus

a profit.

II. Planning the Audit

A. General Approach to the Interview

(1) The key to a successful audit, particularly with individuals in the entertainment

industry, is developing a solid background and history of the individual's

activities and responsibilities. Because people in this industry slide from one job

category to another, it is imperative to determine what the taxpayer actually did

to receive each item of compensation during the tax year. If a "singer" received

all of his or her income from choreographing another performer's routines, his or

her expenses should not include any "on camera" costs such as wardrobe,

make- up, or hair. He or she should, likewise, not be incurring expenses for

rehearsal studios or back-up musicians

A.1. Information to Obtain

(1) Whenever possible, secure copies of all contracts, project agreements, deal

memos, working proposals, letters of understanding, etc. pertaining to the

taxpayer's activities. This is important whether or not the income from these

projects was received in the tax year. These agreements provide fundamental

information on the nature of the taxpayer's income, expenses and

reimbursements. The contracts also disclose who has control and who retains

any rights related to the project.

(2) Request a copy of the taxpayer's resume. This will show what type of work the

taxpayer has done, what sources of income (royalties, residuals, etc.) to expect,

and the taxpayer's reputation or standing in the industry. The examiner should

research the taxpayer on the internet. Most people in show business will list

their credits and the examiner will be able to see some of the projects in which

the taxpayer participated. The following are some internet sites the examiner

can use: IMDb.com and Freebase.com. The examiner can also see if the

taxpayer has his or her own website. The taxpayer's standing in the industry

can be helpful in determining the nature and extent of expenses that would be

incurred to maintain that standing. An unknown actor would not normally need

to send gifts to a prominent producer. A well-known, highly sought after singer

would not need to entertain a camera operator.

A.2. Allocation of Personal Expenses

(1) The allocation between personal expenses and business purpose will depend

on specific correlation between expenditure and income source. The

background interview is very important for these cases. It will be the basis upon

which expenses will be allowed.

(2) Get an initial chronological background of the tax year by inspecting or

researching all logs and records of travel and meals and entertainment. Try

using a general month to month format. Get a sense of the taxpayer's main

activities each month.

(3) Through oral testimony from the taxpayer or third-party contacts, you can

retrieve the dates worked, requirements, and specific activities as they correlate

for each Form W-2, Form 1099- MISC, etc.

A.3. Recordkeeping

(1) In the case of personal expenses used for business purposes, the taxpayer's

compliance with IRC § 274 determines the deductions allowed. Taxpayers who

do not comply with the substantiation requirements of IRC § 274(d) are not

allowed very many, if any, deductions. The criteria for IRC § 274(d) are the

amount of such expense or other item; the time and place of the travel,

entertainment, amusement, recreation; the business purpose; and the business

relationship to the taxpayer of persons entertained.

(2) No deduction should be allowed if the taxpayer is merely receiving a general

business benefit from personal expenses, rather expenses must be directly

related to income. The detailed rules for determining what requirements a

taxpayer must meet for the entertainment to be directly related can be found in

Treas. Reg. § 1.274-2(c).

(3) The documentation limitation under IRC § 274(d) supersedes the Cohan

doctrine (Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930)), which states

that when possible the court should make a close approximation rather than

disallow a deduction entirely.

(4) If a taxpayer received both a Form W-2 and a Form 1099-MISC for income,

determine what the Form 1099-MISC income is - that is, independent

contractor, self-employment income, or reimbursement. Allow related expenses

against this income. Allocate expenses between Schedule A and Schedule C

when the taxpayer has both the Form W-2 and Form 1099-MISC income in the

same line of work. If the taxpayer cannot establish which expenses directly

result from each respective source of income, allocate the expenses as (W-2

entertainment income divided by total entertainment income) times allowable

entertainment business expenses which equals Schedule A miscellaneous

employee business expense. This formula is also shown below:

• (W-2 Entertainment Income ÷ Total Entertainment Income) × Allowable

Entertainment Business Expenses = Schedule A Miscellaneous "EBE"

(5) The balance of the entertainment business expenses may be allowed on

Schedule C.

B. Self-Employment Tax Considerations

(1) Net profit from self-employment over $400 is subject to self-employment tax.

Once expenses have been properly allocated, insure that any net profit or loss

is considered in determining the taxpayer's net self-employment income.

Remember to include income or losses from partnerships and other self-

employed activities. Residual payments that do not have FICA withholding

should be assessed self-employment tax if a net profit is realized after related

expenses, if any, are deducted.

(2) Royalties resulting from services performed (e.g., music performed, songs

written, screenplay written, etc.) are subject to self-employment tax in the same

manner as residuals. Royalties from merchandising or licensing, which did not

involve any services, are not subject to self- employment tax.

C. Employee Versus Independent Contractor

(1) The majority of entertainers and technicians are treated as employees for

Federal tax purposes and will receive a Form W-2 with federal income tax,

FICA tax and Additional Medicare Tax (AdMT) if applicable withheld. The extent

of control a studio or production company has over an entertainer continues to

be the determining factor in classifying an individual as either an employee or

an independent contractor. See Treas. Reg. § 31.3121(d)-1(c)(2), [who are

employees], and Treas. Reg. § 31.3401(c)-1(b), [employee], both of which

state in part:

• Generally, the relationship of employer and employee exists when the

person for whom services are performed has the right to control and

direct the individual who performs the services, not only as to the result

to be accomplished by the work but also as to the details and means by

which that result is accomplished.

(2) Caution: Some examinations will be of taxpayers that have claimed deductions

for amounts paid to service providers which have been reported on Forms

1099-MISC. Extensive questioning of the taxpayer regarding the employment

status of the recipients of Forms 1099-MISC and 1099-NEC without conducting

a formal employment tax audit and/or without stating a position on the

employment classification of the recipient may trigger Section 530 relief under

the Revenue Act of 1978. Section 530 is a relief provision that terminates a

taxpayer’s employment tax liability with respect to an individual not treated as

an employee if three statutory requirements are met: 1) reporting consistency;

2) substantive consistency; and 3) reasonable basis. Section 530 states in part

that an individual will not be considered an employee if a taxpayer treated him

or her and other workers performing similar tasks as nonemployees for all

periods, had a reasonable basis for doing so, and filed required information and

other returns (such as Form 1099-MISC) consistently with that status. See Nelly

Home Care, Inc. v. United States, 185 F. Supp. 3d 653 (E.D. Pa. 2016).

Consultation with an Employment Tax Specialist is recommended. Also, refer to

Chapter 17, Employment Tax, for more information on employment taxes. This

caution is applicable to all activities discussed in Chapters 10 through 16 of this

guide.

D. Audit Techniques

(1) When a taxpayer has received a Form W-2, but claims to actually be an

independent contractor, be thorough in developing the facts. Consider the

following factors:

• The taxpayer received the Form W-2 several years prior to the audit.

Has the taxpayer taken any action to correct the situation?

• The taxpayer received all the benefits of an employee (health benefits,

pension plan, unemployment). Has the taxpayer taken any action to

waive these benefits?

• If the taxpayer is a member of a guild, does the taxpayer have an

individually negotiated contract?

• If the only contract is the union or guild agreement, the taxpayer is an

employee. The union/guild agreement was negotiated as a collectively

bargained agreement on behalf of employees.

• Contributions made on behalf of the taxpayer to a union/guild pension

plan indicate that the taxpayer is an employee.

(2) With few exceptions, taxpayers issued Forms W-2 will report these wages on

their Form 1040 and not on a Schedule C. No consideration should be given to

performers who claim to be a statutory employee or a statutory non-employee

which would allow expenses to be taken against income not subject to either

the 2% AGI limitation or Alternative Minimum Tax. There is no such statute

applicable to this industry.

(3) One important exception, allowing an employee to claim expenses in arriving at

adjusted gross income, is IRC § 62(a)(2)(B). This section pertains to "qualified

performing artists" as defined in IRC § 62(b). A qualified performing artist

means, with respect to any taxable year, any individual if:

• Such individual performed services in the performing arts as an

employee during the taxable year for at least 2 employers,

• The aggregate amount allowable as a deduction under § 162 in

connection with the performance of such services exceeds 10% of such

individual's gross income attributable to the performance of such

services, and

• The adjusted gross income of such individual for the taxable year

(determined without regard to subsection (a)(2)(B)) does not exceed

$16,000.

(4) Refer to Chapter 17, Employment Tax, for more information on employment

taxes.

E. Non-Filers

(1) In the entertainment industry, income can fluctuate greatly from year to year.

This creates a high potential for non-filers. There is no major difference

between non-filers in the entertainment industry and those in any other industry.

The same filing requirements and filing dates apply.

(2) Some taxpayers in the entertainment industry relocate frequently in order to

obtain employment. Third party letters to the unions or guilds can be helpful in

locating the taxpayer. Agents and agencies can also be helpful in locating

taxpayers in the entertainment and modeling professions. Musicians who

perform under the name of a band are more difficult to locate, unless the band

can be identified, which can probably be done by researching the taxpayer on

the internet at such sites as Allmusic.com, Musicbrainz.org, and discogs.com.

The same third-party sources can also be helpful in reconstructing the

taxpayer's income. When working non-filer cases in the entertainment industry,

keep in mind that some time delays are unavoidable. Out of town travel and

location work are common for many of the professions in this industry.

III. Income Issues

A. Residuals

(1) Income may be received by entertainers in many different forms. One of the

most common forms is residuals. These are periodic payments received by

actors and others for re-runs of commercials, episodic television, etc. The payer

may be a film studio or one of a few payroll services. The agent's ten percent

commission is usually charged only where the amount of the residual is above

union scale. Payers typically file Forms W-2 and/or Forms 1099-MISC. The IRS

should, therefore, have adequate records for these information returns. The

primary collector and distributor of residuals for actors is Screen Actors Guild-

American Federation of Television and Radio Artists (SAG-AFTRA). Prior to

March 30, 2012, SAG and AFTRA were two separate unions. Although SAG-

AFTRA does not issue the actual Forms 1099-MISC or Forms W-2, it provides

the documents that support the residuals being reported on the information

returns. Residuals can also be paid directly to a loan-out corporation. The

residual computation can be very complicated but if there is a dispute about the

amount of the residuals, it is between the union and the taxpayer.

B. Royalties and License Fees

(1) Other common forms of income received by people in the entertainment

industry are royalties or license fees. These are periodic payments received by

paid by those who perform, exhibit, run, or otherwise distribute copyrighted

works for a prescribed time period or purpose.

(2) Royalties are portfolio income and non-passive under IRC § 469(e) and Treas.

Reg. § 1.469-2T(c)(3)(i)(A). See also Treas. Reg. § 1.469-2T(c)(7)(i). Royalties

should not be on either Form 8582 or Form 8582-CR (where they improperly

permit deductibility of passive losses and credits). Passive losses and credits

are generally deductible only to the extent of passive income under IRC § §

469(a) and 469(d). There is a single exception in Treas. Reg. § 1.469-

2T(c)(3)(ii)(E) for royalties derived in the ordinary course of a trade or business

of licensing intangible property, which permits royalties to be treated as passive

income. This exception is highly restrictive and rarely seen. It is further

elaborated on in Treas. Reg. § 1.469-2T(c)(3)(iii)(B).

C. Fringe Benefits

(1) Since advertising and promotion deals go on all the time in the entertainment

industry, there are many opportunities for paying employees in something other

than cash. These items may not always appear on the recipient's Form 1040,

but they are taxable and should be included in income under IRC § 83 (fair

market value of property received for services is included in gross income).

They take the form of fringe benefits or goods for services.

(2) A common form of fringe benefit is the perk. Performers sometimes receive

wardrobe and other perquisites from producers. They might get to keep their

costumes after the filming or get the advertiser's product after a commercial

shoot. An established spokesperson for an automobile manufacturer typically

receives a new car each year. There may be merchandise deals, where the

compensation for a broadcast deal is in the form of barter. Frequently,

employees of television, movie studios, and record companies receive free

passes to concerts, shows, and screenings.

(3) Beginning in 1989, if an employer reimburses employee expenses, there must

be an arrangement requiring the employee to substantiate the expenses and/or

return the unsubstantiated portion to the employer. Where there is no such

arrangement in effect, IRC § 62(c) requires that the unsubstantiated portion will

be considered wage income to the employee.

(4) Some performers also receive income for participation, endorsements, product

tie-ins, and prizes (i.e., tractor-pulling, rodeo, TV game shows). Some of these

sources can be identified by relating specific expenses to the source of the

income produced. The examiner should review completed contracts with all of

the addendums to verify that all compensation has been reported on the tax

return.

(5) Taxpayers in the entertainment industry are often eligible for unemployment

compensation between jobs. These payments must also be included in gross

income. Although these amounts are generally reported by the payer on a Form

1099-G, it is advisable to ask about periods of unemployment between jobs

during the initial interview.

D. Advances

(1) Advances and royalties are common for authors, songwriters, actors, and

recording artists. The terms of advances, royalties, and other payments are

described in an agreement between the author and publisher, for example.

Refer to Chapter 4 sections titled Capitalization Issues and Cost Recovery

Issues for a discussion on how to treat payments of advances and royalties to

artists.

(2) An advance is a prepayment to an author, songwriter, etc. or third party on

behalf of the author for future services. The author, songwriter, etc. uses the

advance for personal and business expenses. The publisher or producer will

recoup the advance by retaining future sales. Any additional amounts paid to

the artist will be according to contractual terms.

(3) A cash basis taxpayer should recognize the advance into taxable income in the

year received. An accrual basis taxpayer should recognize advances upon the

earlier of receipt, payment being due, or when earned. IRC § 451(a); Treas.

Reg. § 1.451-1(a). Rev. Proc. 2004-34 provides a method of accounting under

which taxpayers using an accrual method of accounting may defer including all

or part of certain advance payments in gross income until the year after the

year the payment is received.

(4) The tax treatment of advances is very factually driven. In Schlude v.

Commissioner, 372 U.S. 128 (1963), the taxpayer was an accrual basis

taxpayer. Yet the Court concluded, in consideration of the facts and

circumstances of the taxpayer, that the taxpayer's method of accounting was

improper and that the advances should be recognized in the year received.

(5) A taxpayer cannot defer income from services performed until after recoupment

of the advance paid to an artist. Income from services performed by a publisher

or producer, for instance, should be immediately reported as income.

(6) For example, a publisher signed a contract with a writer. Under the contract, the

writer will write a manuscript for a book that the publisher will publish. At the

time that the contract was signed, the publisher advanced the writer $250,000

on royalties for the use of the writer's copyright for the book. A cash basis writer

must include the $250,000 in income in the year received. An accrual basis

taxpayer should recognize the $250,000 upon the earlier of receipt, payment

being due, or when earned. The publisher must capitalize the $250,000 as a

production cost and allocate it to costs of goods sold as the book is published

and sold (see Chapter 4 section titled Payment of Advances and Royalties).

(7) In K. Slaughter v. Commissioner, T.C. Memo. 2019-65, the taxpayer received

both advances and royalties. However, she only included in gross income the

amounts she allocated as attributable to her trade or business as an author. As

such, she excluded royalties received from gross income, claiming they were

instead attributable to her “brand.”

(8) The court held that sufficient nexus existed between petitioner’s brand and her

trade or business of writing that her royalty income from publishing contracts

was subject to self-employment tax.

E. Reconstruction of Income

(1) Some taxpayers fail to report all of their income. When an examiner is unable to

use a direct method of verifying income, it may be necessary to reconstruct

income. There are numerous ways to do this. Here are some that are unique to

the entertainment industry.

(2) If agent commissions are paid at 10%, then the income should be at least ten

times the commissions. The 10% rate should be verified if there is a written

contract.

(3) Union dues may help to identify available union benefits and network

associations to identify potential unreported income for work performed. Some

unions do not send the artist a bill and hold the member responsible for paying

dues timely.

(4) Dues for most of the guilds in the entertainment industry are comprised of an

annual fee and an additional assessment based on earnings. For example, the

SAG-AFTRA dues are based on a sliding scale, determined by how much the

member earned under SAG or AFTRA contracts. In 2014, the annual base dues

were $198.00 plus 1.575% of all individual earnings under SAG or AFTRA

contracts between $1 and $500,000. Dues are calculated on an annual basis

and paid in two installments.

(5) Dues for the Writers Guild of America, West are based on a unit system for

writing employment and/or sales within the guild's jurisdiction and with a

"signatory" company (a company that has signed the guild's collective

bargaining agreement). Depending upon the number of units earned, a writer

may be eligible for either current (full) membership or associate (partial)

membership. For example, for current membership a writer must acquire a

minimum of 24 units in the three years preceding application. Upon final

qualification for current membership, an initiation fee of $2,500 is due. The

quarterly declaration of gross earnings information from the writer is the basis

for quarterly member dues (1.5% of applicable gross earnings plus $25.00).

Guild dues statements and declaration of earnings statements will identify the

artists' earnings. These statements can aid in the reconstruction of income.

IV. Capitalization and Cost Recovery Issues

A. Capitalization Issues

(1) When a taxpayer produces or creates a product (video, film, recording, etc.),

the taxpayer will generally incur a great portion of the expenses before the

product is ready to produce income. When this happens, the taxpayer is usually

required to capitalize those expenses and recover (deduct) them over the

period of time that the product is producing income. Several different provisions

apply depending on whether the taxpayer is already in the business and the

specific business the taxpayer is in. No matter what method is utilized,

depreciation/amortization expenses cannot be deducted until the product is

released to the public. Exhibit 4-1 addresses the decision path for capitalization.

A.1. IRC § 195 – Start-Up Expenditures

(1) Expenses for investigating, creating, or acquiring a new business are

nondeductible capital expenses. This applies to all expenses before the day the

active trade or business begins. These provisions apply to someone starting out

in the entertainment industry, before offering a completed product for sale,

production, or distribution.

(2) Start-up expenses are expenditures which would normally be deductible under

IRC § 162 if they were incurred in connection with operating a business. These

expenses, however, do not include amounts deductible under other Code

sections such as interest (IRC § 163), taxes (IRC § 164), and research

expenses of a scientific nature (IRC § 174).

(3) IRC § 195 allows a taxpayer to elect to deduct these capitalized expenses.

IRC § 195(b). If an election is made, the taxpayer may deduct the lesser of the

amount of the start-up expenditures or $5,000 (reduced, but not below zero, by

the amount by which the start-up expenditures exceed $50,000) in the year the

active trade or business begins. Id. § 195(b)(1)(A). The remainder is then

deductible ratably over the 180-month period beginning with the month in which

the active trade or business begins. Id. § 195(b)(1)(B). This is called

"amortization of startup costs." See Treas. Reg. § 1.195-1(a). This election must

be made by the due date of the return (including extensions) for the year in

which the business begins. IRC § 195(d)(1). If the taxpayer does not make a

timely election to amortize these expenses, they are carried on the books as a

capitalized item until the taxpayer disposes of the business. See id. § 195(a). A

taxpayer is deemed to have made an election to amortize start-up expenses for

the year in which the active trade or business begins. Treas. Reg. § 1.195-1(b).

A taxpayer can forgo the deemed election by affirmatively electing, on the tax

return, to capitalize the start-up expenses instead. Id.

A.2. IRC § 197 – Amortization of Goodwill and Certain Other

Intangibles

(1) Under IRC § 197, intangibles are amortized for 15 years using the straight-line

method. However, self-created work (IRC § 197(c)(2)(B)) is excluded under this

section. An IRC § 197 intangible is created by the taxpayer to the extent the

taxpayer makes payments or incurs costs for its creation, production,

development or improvement. IRC § 197 intangibles described in section

197(d)(1)(D) [government licenses], section 197(d)(1)(E) [covenants not to

compete] and section 197(d)(1)(F) [franchises, trademarks and trade names]

are amortizable section 197 intangibles even if they are self-created.

A.3. IRC § 263A – Capitalization and Inclusion in Inventory Costs of

Certain Expenses

(1) IRC § 263A generally requires taxpayers engaged in the production and resale

of creative property to capitalize certain costs. IRC § 263A(b)(2) provides that,

for purposes of the uniform capitalization rules, the term "tangible personal

property" shall include a film, sound recording, videotape, book, or other similar

property.

(2) Tangible personal property is further defined in Treas. Reg. § 1.263A-2(a)(2)(ii)

as:

• Films, sound recordings, video tapes, books and other similar property

embodying words, ideas, concepts, images, or sounds by the creator.

• "Other similar property" generally means intellectual or creative property

for which, as costs are incurred in producing the property, it is intended

(or is reasonably likely) that any tangible medium in which the property is

embodied will be mass distributed by the creator or third party in a form

that is not substantially altered. However, intellectual or creative property

that is embodied in a tangible medium that is mass distributed merely

incident to the distribution of a principal product or good of the creator is

not other similar property for these purposes.

(3) IRC § 263A(f)(4)(B) defines the production period as the beginning on the date

on which production of the property begins and ending on the date on which the

property is ready to be placed in service or ready to be held for sale. See also

IRC § 263A(f)(4)(C) which defines production expenditures as the costs

(whether or not incurred during the production period) required to be

capitalized.

A.4. Costs Required to be Capitalized by Producers –

Treas. Reg. § 1.263A-2(a)(3)(i)

(1) In general, except as specifically provided in IRC § 263A(f) with respect to

interest costs, producers must capitalize direct and indirect costs properly

allocable to property produced under § 263A, without regard to whether those

costs are incurred before, during, or after the production period (as defined in §

263A(f)(4)(B)). Treas. Reg. § 1.263A-2(a)(3)(i). Examples of costs that are

required to be capitalized prior to, during, and after production are:

• Term deals

• Research

• Fringe benefits

• Payroll taxes

• Travel and entertainment

• Computer

• Office supplies

• Photocopy

• Above the line personnel

• Allocation of indirect costs such as utilities, tools, clerical, rental of

equipment, etc.

A.5. Pre-Production Costs – Treas. Reg. § 1.263A-2(a)(3)(ii)

(1) Pre-production begins when the project is green-lit. This is the phase where

decisions are finalized for the specific production or project. Examples include,

but not limited to, set location, set design, costumes, financing, producers,

directors, cast members, cinematographer, screenplay, etc. Pre-production

costs for a singer may include making the demo recording, creating and refining

the artists' musical ideas, etc. to prepare for the major recording time in the

studio.

(2) If property is held for future production, taxpayers must capitalize direct and

indirect costs allocable to such property even though production has not begun.

Treas. Reg. § 1.263A-2(a)(3)(ii). Research, travel, and other associated costs

for the development or rewrites of scripts, screenplays, and teleplays prior to

production are other examples of pre-production costs. If property is not held for

production, indirect costs incurred prior to the beginning of the production

period must be allocated to the property and capitalized if, at the time the costs

are incurred, it is reasonably likely that production will occur at some future

date. Id.

A.6. Post-Production Costs – Treas. Reg. § 1.263A-2(a)(3)(iii)

(1) Post-production is the phase where work is completed to prepare the work for

release for public exhibition. Examples of post-production include, but are not

limited to, adding visual and sound special effects, animation, music editing

such as perfecting timing, pitch, etc.

(2) Generally, producers must capitalize all indirect costs incurred subsequent to

completion of production that are properly allocable to the property produced.

Thus, for example, storage and handling costs incurred while holding the

property produced for sale after production must be capitalized to the extent

properly allocable to the property. However, see Treas. Reg. § 1.263A-3(c) for

exceptions.

A.7. IRC § 263A(h) - Exemption for Free Lance Authors,

Photographers, and Artists

(1) IRC § 263A(h), provides an exemption for qualified creative expenses paid or

incurred by certain free-lance authors (non-employees), photographers, and

artists.

(2) Qualified creative expenses are defined as expenses incurred by an individual

in the trade or business (other than as an employee) of being a writer,

photographer, or artist, if the expenses would be currently deductible without

regard to IRC § 263A. IRC § 263A(h)(2). This does not mean that 100% of

costs are deductible. For example, deductible costs do not include expenses

related to printing, photographic plates, motion picture films, video tapes, or

similar items. Id.

(3) Writers, composers, photographers, and artists are defined in IRC § 263A(h)(3)

as:

• Writer or Composer – A writer or composer includes an individual whose

personal efforts create a literary manuscript, musical composition or

dance score.

• Photographer – A photographer includes an individual whose personal

efforts create a photograph or photographic negative or transparency.

• Artist – An artist includes an individual whose personal efforts create a

picture, painting, sculpture, statue, etching, drawing, cartoon, graphic

design, or original print edition. Criteria to determine whether any

expense is paid or incurred in a trade or business as an artist are: (1) the

originality and uniqueness of the item created (or to be created) and (2)

the predominance of aesthetic value over utilitarian value of the item

created (or to be created). IRC § 263A(h)(3)(C)(ii).

(4) Expenses that are directly tied to the creative item of a writer, photographer,

composer, or artist may still require capitalization. For example, production and

engineering costs incurred to produce a sound recording are not § 263A(h)

"qualified creative expenses," and therefore the costs of producing a sound

recording are not exempt from the general rule of section 263A. A demo tape is

a sound recording, is tangible personal property, and is subject to capitalization

unless excepted by the Code. See TAM 9643003, 1996 WL 616051 (IRS TAM).

A.8. IRC § 263A(i) - Exemption for Certain Small Businesses

(1) A small business taxpayer is a taxpayer that meets the gross receipts test of

IRC § 448(c). A taxpayer meets the gross receipts test if it is not a tax shelter,

as defined in section 448(d)(3), which cross-references section 461(i)(3), and

has average annual gross receipts of $25 million or less (as adjusted for

inflation) for the three prior tax years. Please note that the threshold for 2019,

2020, and 2021 has been increased to $26 million.

(2) When a taxpayer: (1) is not a tax shelter, and (2) meets the gross receipts test,

the taxpayer is not required to capitalize production costs. Thus, IRC § 263A

does not apply and the taxpayer can deduct production costs.

A.9. Payment of Advances and Royalties

(1) An advance is a prepayment to an author, songwriter, etc. or third party on

behalf of the artist for future services. Royalties and license fees are periodic

payments to copyright owners such as songwriters, recording artists, authors,

etc. paid by those who perform, exhibit, run, or otherwise distribute copyrighted

works for a prescribed time period or purpose.

(2) When a taxpayer advances funds to an artist in consideration for the acquisition

of copyrights, the advanced payment is a non-deductible expense and must be

capitalized to the cost of acquiring an intangible asset. Treas. Reg. § 1.263(a)-

4. The taxpayer should amortize the advance over the useful life of the

manuscript for a book. He sold the manuscript and all associated copyrights to

a publisher for $250,000. The publisher must capitalize the $250,000 paid as a

cost to acquire an intangible. Bob must include the $250,000 in income in the

year received (see Chapter 3, section titled Advances).

(3) When advances are for royalties for the use of the artist's copyrights, economic

performance occurs as royalties are used to produce copies of the work. The

advances are capitalized as production costs under IRC § 263A. The advances

would be allocated to costs of goods sold as the copies are sold.

(4) The same would be the case for advances to compensate the artist for services

expected to be performed. The advance is incurred when economic

performance first occurs and the all events test is met. IRC § 461(h)(1); Treas.

Reg. § 1.461-4(a)(1). Economic performance occurs as services are rendered

by the artist. See IRC § 461(h)(2)(B). Once the all events test is met, the

advances are capitalized to the asset cost or production.

(5) For example, a publisher signed a contract with a writer. Under the contract, the

writer will write a manuscript for a book that the publisher will publish. At the

time that the contract was signed, the publisher advanced the writer $250,000

on royalties for the use of the writer's copyright for the book. The publisher must

capitalize the $250,000 as a production cost and allocate it to costs of goods

sold as the book is published and sold. Generally, the writer must include the

$250,000 in income in the year received.

(6) See Chapter 3, section titled Advances, for a discussion on receipt of advances

and royalties.

B. Cost Recovery Issues

(1) Expenses which represent the basis of an asset used in or produced in a trade

or business may be recovered using one of several possible methods. The

appropriate recovery system or period may depend upon the terms of sale or

exploitation of the asset. If all rights to a completed project (i.e., film, movie,

etc.) are sold as a package, the recovery of the capitalized costs will be allowed

as part of adjusted basis reducing the amount realized (or cost of goods

reducing gross receipts).

B.1. Placed in Service

(1) Treas. Reg. § 1.167(a)-11(e)(1)(i) defines "first placed in service" as the time

the property is first placed in service by the taxpayer, not to the first time the

property is placed in service. Property is first placed in service when first placed

in a condition or state of readiness and availability for a specifically assigned

function.

(2) For example, motion picture rights are placed in service when the film is initially

released for public exhibition. Manuscript rights, having the same

characteristics for purposes of depreciation as motion picture film rights, are

placed in service when books produced from the manuscript are first released

for distribution and sale. Rev. Rul. 79-285, 1979-2 C.B. 91, 1979 WL 51039.

B.2. Elective Safe Harbor - Notice 88-62

(1) Under Notice 88-62, 1988-1 C.B. 548, a taxpayer can make an election to

aggregate and capitalize all qualified creative costs and amortize and deduct

50% of total qualified creative costs in the year incurred and 25% in each

immediate succeeding two tax years.

(2) This method does not require the creative property to be placed in service and

the election is made on the first tax return when IRC § 263A applies by

reporting expenses according to this method. If a taxpayer does not do this, the

taxpayer must file a Form 3115 to request permission to change his or her

method of accounting. A taxpayer cannot use this method until approval is

received.

(3) This three-year safe harbor is available only for the qualified creative costs paid

or incurred in producing creative properties, defined as films, sound recordings,

video tapes, books (including, for example, articles and poems), photographs,

plays and other dramatic works, musical and dance compositions (including

accompanying words), graphic and pictorial compositions, fine art paintings and

sculptures, and other similar fine art products (but not including jewelry). No

other properties other than those defined in Notice 88-62 are eligible for this

safe harbor.

(4) Costs incurred by a taxpayer in a hobby are not qualified creative costs eligible

for this safe harbor because such costs are not § 263A costs and qualified

creative costs only consist of costs incurred in a trade or business or an activity

conducted for profit.

(5) Qualified creative costs consist of: (1) all costs required to be capitalized under

§ 263A and the regulations thereunder with respect to the production of creative

properties (§ 263A costs); and (2) all other costs incurred and otherwise

deductible by the taxpayer in the trade or business of producing creative

properties.

(6) Moreover, qualified creative costs include the costs of producing properties that

are sold (or otherwise disposed of in their entirety) by the taxpayer in the same

taxable year that such costs are incurred. For example, costs incurred by a

taxpayer in writing an article (or producing a photograph) that the taxpayer sells

in its entirety to a magazine in the same year that the costs are incurred would

be qualified creative costs and thus subject to this three-year safe harbor.

(7) This method only applies to qualified creative costs incurred by a self-employed

individual in the production of creative properties where the personal efforts of

such individual predominantly create such properties. Qualified creative costs

do not include the costs paid or incurred by a person in the capacity as an

employee, nor do they include costs incurred by an individual in producing

creative properties where the personal efforts of such individual do not

predominantly create such properties (e.g., where the properties are

predominantly created by persons other than the individual such as employees

or independent contractors). Qualified creative costs do not include costs

incurred by a partnership, trust, or corporation, unless certain criteria are met

under the Notice.

B.3. Internal Revenue Code § 181

(1) Film or television producers can elect to deduct certain costs under IRC § 181

instead of capitalizing them if certain requirements are met. The election is

available for qualified film or television production and any qualified live

theatrical production beginning after December 31, 2015, and before January 1,

2026. Although, see IRC § 168(k) for costs that may qualify for a depreciation

deduction.

(2) IRC § 181 was enacted as an incentive to keep production companies or most

of the work in the United States. The production does not need to have been

placed in service. However, the taxpayer must be able to show a reasonable

basis for believing the production will be green-lit. Treas. Reg. § 1.181-

1(a)(1)(i). Only the owner of the production may elect to deduct production

costs under IRC § 181. The owner is deemed to be the taxpayer otherwise

required to capitalize production costs into the basis of the production under

IRC § 263A. Treas. Reg. § 1.181-1(a)(2)(i). Further, an owner is a person that

acquires a finished or partially finished production. Treas. Reg. § 1.181-

1(a)(2)(ii). Under certain circumstances, an owner must recapture costs. Treas.

Reg. § 1.181-4(a) outlines the situations when recapture is required.

(3) Under IRC § 181(d), if 75% of the total compensation of the production is

qualified compensation (as defined in IRC § 181(d)(3)), a qualifying film or

television production is:

• Property described in IRC § 168(f)(3) - i.e., any motion picture film or

video tape.

• In a case of a television series: (a) each episode shall be treated as a

separate production, and (b) only the first 44 episodes of such series

shall be taken into account.

(4) A qualifying live theatrical production is a production where 75% of the total

compensation (as defined in IRC § 181(d)(3)) is qualified compensation. A

qualifying live theatrical production is a live staged production of a play (with or

without music) which is derived from a written book or script and is produced or

presented by a taxable entity in any venue which has an audience capacity of

not more than 3,000 or a series of venues the majority of which have an

audience capacity of not more than 3,000.

(5) Qualified live theatrical productions include seasonal live staged productions

produced or presented by a taxable entity for not more than 10 weeks of the

taxable year, which has an audience capacity of not more than 6,500 or a

series of venues the majority of which have an audience capacity of not more

than 6,500.

(6) Multiple live staged productions (e.g., touring companies), may qualify under

IRC § 181 if the taxpayer qualifies under this provision and the productions are

separate phases of a production or separate simultaneous stagings of the same

production in different geographical locations (not including multiple

performance locations of any one touring production). Each live staged

production shall be treated as a separate production.

(7) The term “phase” refers each to the initial staging of a live theatrical production

and subsequent additional stagings or touring of such production which are

produced by the same producer only if each is treated as a separate activity by

the taxpayer under IRC § 181.

(8) If each of the following is treated by the taxpayer as a separate activity, the term

“phase” refers to:

• the initial staging of a live theatrical production

• subsequent additional stagings or touring of such production which are

produced by the same producer as the initial staging.

(9) Qualified compensation means compensation for services performed in the

United States by actors, production personnel, directors, and producers. IRC §

181(d)(3)(A). Qualified compensation does not include participations and

residuals as defined in IRC § 167(g)(7)(B). Id. § 181(d)(3)(B).

(10) Taxpayers are allowed to expense up to $15 million of qualifying film and

television production costs. IRC § 181(a)(2)(A). The limit is increased to $20

million if the production costs are "significantly incurred" in areas eligible for

designation as a low-income community or distressed or isolated communities.

Id. § 181(a)(2)(B).

(11) A production is not qualified if records are required under 18 U.S.C. § 2257,

Record Keeping Requirements, Sexual Exploitation and Other Abuse of

Children, to be maintained with respect to any performer in such production. Id.

§ 181(d)(2)(C).

(12) To make the election, an owner must attach a statement to a timely filed

Federal income tax return (including extensions) for the taxable year in which

costs of the production are first incurred. Treas. Reg. § 1.181-2(b)(1).

(13) For a discussion on the sufficiency and appropriateness of the taxpayer's IRC §

181 election, see Staples v. Commissioner, T.C. Memo. 2013-262, and Storey

v. Commissioner, T.C. Memo. 2012-115.

B.4. Income Forecast Method

(1) If, as is true in most productions, the project is exploited over a period of years

(released in theaters, television, DVD, etc.), the most appropriate means of

recovering costs is through the income forecast method. See IRC § 167(g);

Prop. Treas. Reg. § 1.167(n)-0 to -7; Rev. Rul. 64-273, 1964-2 C.B. 62; Rev.

Rul. 60-358, 1960-2 C.B. 68. The income forecast method can only be used for

films, videotapes, sound recordings, copyrights, books, patents, or other

property specified in the Regulations. IRC § 167(6). It cannot be used with

respect to an intangible amortizable under § 197. Id.

(2) The income from the property to be taken into account in determining the

depreciation deduction under this method is the amount of income earned in

connection with the property before the close of the tenth taxable year following

the taxable year in which the property was placed in service (i.e., 11th year).

IRC § 167(g)(1)(A). Therefore, this method requires an estimate of total income

to be derived from the film over the ten years following the year the film is

placed in service. This estimate will include not only anticipated revenue from

theatrical releases, but also television, cable, video, etc., if the arrangements

are entered into prior to depreciating the film down to its salvage value.

(3) The adjusted basis should only include amounts for which the requirements of §

461(h) are satisfied. Id. § 167(g)(1)(B). The taxpayer may include participations

and residuals in the adjusted basis for the taxable year in which the property is

placed in service, but only to the extent the participations and residuals relate to

income the taxpayer estimates will be earned in connection with the property

before the end of the tenth taxable year after the taxable year the property is

placed in service. Id. § 167(g)(7)(A).

(4) The Income Forecast Method computation is the net income for the taxable

year divided by the forecasted total income to be received before close of the

tenth year, following the year in which the film is placed in service, multiplied by

the cost of the film equals the depreciation deduction for the taxable year. The

computation is also shown in the diagram below:

• (Net Income for Taxable Year ÷ Forecasted Total Income to be Received

Before Close of 10th Year Following Year in which the Film is Placed in

Service) × Cost of the Film = Depreciation Deduction for Taxable Year

(5) The depreciation deduction for the tenth taxable year should equal the adjusted

basis of such property as of the beginning of the tenth taxable year. IRC §

167(g)(1)(C). The taxpayer shall pay (or be entitled to receive) interest

computed under the look-back method for any re-computation year. Id. §

167(g)(1)(D). The computation of interest under the look-back method is

described in IRC § 167(g)(2).

(6) The re-computation year is defined as the third and tenth taxable years,

beginning after the taxable year in which the property was placed in service,

unless the actual income earned in connection with the property for the period

before the close of the third or tenth taxable year is within 10% of the income

earned in connection with the property for such period which was taken into

account under § 167(g)(1)(A). Id. § 167(g)(4). A taxpayer is exempt from the

look- back method for property that has a cost basis of $100,000 or less. Id. §

167(g)(3).

B.5. IRC § 167(g)(8) – Special Rules For Certain Musical Works and

Copyrights (Expired)

(1) The costs of master recordings used for substantially more than one year to

produce records must be capitalized and recovered through depreciation. Rev.

Rul. 69-475, 1969-2 C.B. 40, 1969 WL 19107. Beginning in tax year 2006, a

taxpayer may elect to amortize over a five-year period any expense paid or

incurred in creating or acquiring any musical composition (including

accompanying words) or any copyright with respect to a musical composition

that is required to be capitalized. IRC § 167(g)(8)(A), (C)(i). If a taxpayer makes

the election, it is effective for all musical compositions and musical composition

copyrights placed in service in that tax year. Id. § 167(g)(8)(A), (D). This

election expired and may not be made for any taxable year beginning after

December 31, 2010. Id. § 167(g)(8)(E).

(2) "Applicable musical property" is defined as any musical composition (including

any accompanying words), or any copyright with respect to a musical

composition. IRC § 167(g)(8)(C)(i). The five-year amortization is not allowed for

property with respect to which expenses are treated as qualified creative

expenses to which IRC § 263A(h) applies, property to which a simplified

procedure established under IRC § 263A(i)(2) applies, or property which is an

amortizable IRC § 197 intangible as defined in IRC § 197(c). Id. §

167(g)(8)(C)(ii). The five-year amortization period begins in the month the

property is placed in service. Id. § 167(g)(8)(C)(ii).

B.6. Abandonment Loss

(1) A taxpayer may deduct production costs for creative properties deemed

worthless either before or after release for public exhibition. Studios, for

example, do not usually discard, release to the public domain, or otherwise

dispose of the creative properties not set for production or sold. Generally,

studios retain these properties indefinitely. In other words, the creative

properties still have value. As such, a taxpayer cannot deduct production costs

of a project that they later abandon unless they prove that it was abandoned.

Treas. Reg. § 1.165-1(b) states that a loss can be deducted when it is

evidenced by a closed and completed transaction, fixed by identifiable events.

In addition, the loss must actually have been sustained in the year of the

deduction and in a trade or business or a transaction entered into for profit. IRC

§ 165(a), (c). Substance and not mere form govern in determining a deductible

loss. Treas. Reg. § 1.165-1(b). Under Treas. Reg. § 1.165-1(b) and (d)(1) a

taxpayer must identify event(s) showing a closed or completed transaction

establishing worthlessness that is observable to outsiders and irrevocably cut

ties to the project.

(2) Rev. Rul. 2004-58 provides that, unless a taxpayer has formally established an

affirmative act of abandonment, or an identifiable event evidencing a closed and

completed transaction fixed by an identifiable event establishing the

worthlessness of the property, the taxpayer cannot claim a loss deduction under

IRC § 165 for the capitalized costs of acquiring and developing the property.

(3) Putting a script on the shelf for a while with the possibility of selling it at a later

date, is not abandoning it. Merely not attempting to exhibit a film is not

abandoning it, since it may still be exploited in the future. A taxpayer must show

intent to abandon and make an affirmative act of abandonment in such a

manner that the asset is not retrievable.

(4) In A.J. Indus., Inc. v. United States, 503 F.2d 660, 670 (9th Cir. 1974), the Ninth

Circuit Court of Appeals articulated a two-prong test to establish abandonment:

1) an intention on the part of the owner to abandon the asset, and 2) an

affirmative act of abandonment. If the property is held by the taxpayer and is

available for future use (or intended for future use), the deduction is not

allowed. A.J. Indus., Inc., 503 F.2d at 670-671. In Gulf Oil Corp. v.

Commissioner, 914 F.2d 396, 402 (3d Cir. 1990), the Third Circuit Court of

Appeals observed that § 165 losses are referred to as abandonment losses to

reflect that some act is required that evidences a taxpayer's intent to

permanently discard or discontinue use of the property.

(5) The "identifiable event" required by Treas. Reg. § 1.165-1 "must be observable

to outsiders and constitute 'some step which irrevocably cuts ties to the asset.'"

United Dairy Farmers, Inc. v. United States, 267 F.3d 510, 522 (6th Cir. 2001)

(quoting Corra Resources, Ltd. v. Commissioner, 945 F.2d 224, 226 (7th Cir.

1991)). Internal documentation is not sufficient to establish the identifiable

event.

(6) Worthlessness is not when a taxpayer retains a script for the purpose of:

• Preventing a competitor from using it, or

• Defending against potential copyright infringement suit, or

• Maintaining good relations with the writer, or

• Using it if it has value in the future.

(7) The examples above are demonstrations of a script that still has value.

Therefore, the taxpayer would not be allowed to deduct an abandonment loss

under IRC § 165.

(8) Audit Techniques:

• Review taxpayer and industry websites for continued attempts to market

or exploit a project to show that it is not worthless.

• Ask for contracts, option agreements, etc.

• Request details of an identifiable event that destroys the potential value

and usefulness of the property or an affirmative act of abandonment.

B.7. Revenue Procedure 2004-36

(1) When a taxpayer maintains its books and records according to generally

accepted accounting principles (GAAP), there will be differences in the books

and records for tax purposes and GAAP purposes. When a taxpayer follows

AICPA Statement of Position (SOP 00-2), Accounting by Producers or

Distributors of Film, production costs are immediately expensed when a

production is not green-lit within three years of when the costs are incurred.

SOP 00-2 provides guidance on generally accepted accounting principles for

films and is applicable to all producers or distributors that own or hold rights to

distribute or exploit films.

(2) Rev. Proc. 2004-36, 2004-1 C.B. 1063, allows film producers to amortize

certain creative property costs ratably over a 15-year period beginning in the

year the creative property costs are written off for book purposes under AICPA

Statement of Position (SOP) 00-2, Accounting by Producers or Distributors of

Film. A change in a taxpayer's treatment of creative property costs is a change

in method of accounting to which IRC § 446(e) and § 481 apply.

(3) The interval between the time a film idea is first conceived and theatrical

release varies from film to film and may take several years. A typical film

production timeline is as follows:

• Script idea

• Negotiations with studio.

• Green-light for production: (a) Green-lit less than 3 years after first cost

incurred is capitalized for tax and GAAP purposes. (b) Green-lit more

than three years after first cost incurred is immediately written off for

GAAP purposes. GAAP SOP 00-2. When this occurs, Rev. Proc. 2004-

36 applies for tax purposes and straight-line, half-year convention,

amortization over 15 years is used.

• Principal photography.

• Post production.

• Theatrical release (a taxpayer may begin to amortize/depreciate

capitalized costs at this stage).

C. Exhibit 4-1 - Decision Path for Capitalization

(1) STEP 1: Is the taxpayer carrying on a trade or business?

• YES - Proceed to Step 2

• NO - Expenses may be limited or not allowed – Consider IRC § 183.

(2) STEP 2: Is the taxpayer already in the trade or business?

• YES - Proceed to Step 3

• NO - Proceed to Step 4

(3) STEP 3: Is the taxpayer creating or producing an asset (script, film, movie,

C.D., etc.)?

• YES - Proceed to Step 5

• NO - Expenses are not capitalized. Allow IRC § 162 expenses.

(4) STEP 4: Is the taxpayer incurring start-up costs for the trade or business?

• YES - Capitalize start-up expenses under IRC § 195. Include all

expenses that would have been allowed if the taxpayer were in a trade

or business except for interest (IRC § 163) and taxes (IRC § 164). The

taxpayer may elect to amortize the start-up expenses. If an election is

made, by the due date (including extensions) of the return for the first

year in the business, then the taxpayer can deduct the lesser of the

startup expenses or $5,000 (subject to phase-out); the remainder is

deducted over a 180-month period beginning with the month in which the

taxpayer is actually in business.

• NO - Expenses are not allowed.

(5) STEP 5: Does the taxpayer retain ownership or rights in the completed project?

• YES - Proceed to Step 6

• NO - Expenses are not capitalized. Allow IRC § 162 expenses.

(6) STEP 6: Is the taxpayer an artist, free-lance writer, or composer?

• YES - Allow current creative expenses, capitalize only "basis" items.

Qualified creative expenses include trade or business expenses (IRC §

162) incurred in the activity of being a writer, artist, photographer, or

composer. These expenses do NOT include expenses incurred to

produce motion pictures, video tapes, sound recordings, or similar items.

Therefore, a "writer" may have some expenses allowable and others

capitalized if the writer is also involved in pre-production (budgeting,

casting, etc.), for the production of a movie from the screenplay being

written. A composer may have qualified creative expense and also incur

production expenses for preparing to record (or for recording) the music

as it is composed.

• NO - If the taxpayer does not meet IRC § 263A(i), capitalize all direct

expense and allocable portion of indirect expenses under IRC § 263A.

Do not capitalize: (a) marketing and selling expenses such as copying,

distribution contract negotiation, promotion expense, and advertising; (b)

bidding expenses for contracts not obtained (job search); (c)

administrative or general expenses not related to a particular production

activity.

V. Passive Activity Issues

A. IRC § 469

(1) The passive loss rules of IRC § 469 impact entertainment industry cases in

several ways:

• Rentals of equipment to studios, production teams, etc.

• Characterizing royalties as passive income so that they are offset by

otherwise non-deductible passive losses.

• Claiming losses from entertainment or other activities in which the

taxpayer does not materially participate.

(2) Under IRC § 469, a taxpayer is not allowed to offset any personal service or

portfolio income with losses from passive activities. A passive activity is any

rental activity and any activity in which the taxpayer does not materially

participate. IRC § 469(c)(1)-(2). To materially participate, the taxpayer must be

involved in the day-to-day operations of the activity on a regular, continuous,

and substantial manner. Id. § 469(h)(1). A taxpayer can establish material

participation by satisfying any one of the seven tests found in Temp. Treas.

Reg. § 1.469-5T(a):

• The individual participates in the activity for more than 500 hours during

the year.

• The individual's participation in the activity for the taxable year

constitutes substantially all of the participation in the activity of all

individuals (including individuals who are not owners of interests in the

activity) for the year.

• The individual participates in the activity for more than 100 hours during

the taxable year, and the individual's participation in the activity for the

taxable year is not less than the participation in the activity of any other

individual (including individuals who are not owners of interests in the

activity) for the year.

• The activity is a significant participation activity . . . for the taxable year,

and the individual's aggregate participation in all significant participation

activities during the year exceeds 500 hours.

• The individual materially participated in the activity … for any five taxable

years (whether or not consecutive) during the ten taxable years that

immediately preceded the taxable year.

• The activity is a personal services activity … and the individual materially

participated in the activity for any three taxable years (whether or not

consecutive) preceding the taxable year.

• Based on all facts and circumstances … the individual participates in the

activity on a regular, continuous, and substantial basis during such year.

B. Rental of Equipment

B.1. Identifying the Issue

(1) In the entertainment industry, we often see many individuals (stunt persons,

lighting specialists, props persons, etc.) involved in productions who own and

use their own equipment as part of their job. Along with their services, the

studios contract with these individuals to rent this equipment for periods of time

as short as one day or as long as the duration of the production. The lessors of

the equipment then mix the income and expenses of this rental activity with the

income and expenses of their personal service activity on a Schedule C. In

other instances, the rental activity is reflected on the Schedule E as a rental, but

the taxpayer claims the losses as part of the $25,000 rental real estate

allowance.

B.2. Law

(1) Under IRC § 469, any rental activity is automatically defined as a passive

activity, regardless of the taxpayer's participation. IRC § 469(c)(2). If the

average period of customer use is 7 days or less, the activity is not considered

a rental, and regular material participation rules must be used to determine if

the activity is a passive activity. See Temp. Treas. Reg. § 1.469-1T(e)(3)(ii).

(2) In addition, the gross rents received from the activity must be more than 20% of

the total gross income from both the personal service portion and the rental

portion of the contract. If the gross rents received are less than 20%, the entire

activity is considered a personal service activity. Alternatively, if the gross rents

received from the activity exceed 80%, the entire activity will be considered a

rental activity. See Temp. Treas. Reg. § 1.469-4T(d)(1)-(2).

B.3. What are the exceptions to the rental definition?

• Average customer use is 7 days or less (e.g., charter boats, B&Bs,

vacation condos).

• Average customer use is 30 days or less and significant personal

services are provided.

• Extraordinary personal services are provided in connection with property

(e.g., hospital).

• Rental is incidental to a non-rental activity. Rents are less than 2% of

adjusted basis or FMV.

• Property is available during defined business hours for nonexclusive use

by customers.

• Property is provided (contributed) to a partnership or S corporation in

which the taxpayer has an ownership interest. If property is leased

(instead of contributed) to the partnership or S corporation, this

exception does not apply.

(2) Temp. Treas. Reg. § 1.469-1T(e)(3)(ii). If the taxpayer's activity falls into any of

the above exceptions, the activity is not considered a rental activity and the

ordinary material participation rules apply. For more details, see the Passive

Activity Loss Audit Technique Guide.

B.4. Audit Techniques

(1) Inspect any available contract(s) with the lessee (studio, production crew, etc.).

Determine the average period of rental use for the equipment. Look to the intent

of the contract. For example, if a studio rents a prop for the duration of filming a

movie, but the payment is computed and paid on a weekly basis, the period of

use is the length of filming, not one week. If the equipment is typically rented

out for only a day or two, the activity is not a rental and should be considered a

regular trade or business activity. If the equipment is typically rented out for

more than 7 days, the activity is likely a rental activity, and must be separately

considered.

(2) Compare the gross rents received to the compensation for personal services on

the same contract. If the gross rents received is greater than 20% of the total of

gross rents and personal services compensation, the activities must be divided

into a rental portion and a personal service portion.

(3) Separate the income and expenses into two activities - rental versus personal

service. Remember to allocate those expenses properly associated with the

rental (depreciation, repairs, transportation, etc.) to the rental and those

properly associated with the personal service activity to that activity. Audit the

income and expenses as you normally would using IRC §61 and §162.

(4) Compute any passive loss limitation on the rental activity. Remember that the

taxpayer is generally renting equipment (personal property) rather than real

estate (real property); any losses incurred from this activity are not eligible for

the $25,000 real estate rental allowance.

C. Royalty Income

C.1. Identifying the Issue

(1) Artists and performers often receive current payments for services rendered in

past years. These are commonly referred to as royalties or residuals.

Sometimes these amounts are erroneously reported on the Schedule E as

"royalties," and at other times they appear correctly on the Schedule C, with

expenses written off against the income.

(2) Alternatively, some persons in the entertainment industry (such as executive

producers or others) may receive residual payments from use of productions in

which they were only an investor. These payments should be reported as

Schedule E royalties. If properly recognized on the Schedule E as "royalties,"

the taxpayers will tend to circumvent IRC § 469 by netting this royalty income

with rental losses, or with other partnership or S-Corporation losses.

C.2. Law

(1) Taxpayers are only allowed to offset passive income with passive losses. They

cannot use passive losses to offset other types of income (active or portfolio).

Under IRC § 469, any compensation received for personal services (even for

personal services rendered in past years) is not passive income.

(2) Compensation received from an activity in which the taxpayer did not materially

participate, however, is passive and can be offset by other passive losses.

C.3. Audit Techniques

(1) Determine the nature and source of the payments received. If the payments are

for activities in which the taxpayer materially participated, then they may not be

offset by passive losses. If the source of the payment is an activity in which the

taxpayer was a passive investor, the royalty income (and any related expenses)

are portfolio items, generating neither passive/non-passive gains or losses.

(2) Recompute the passive loss limitation to consider any recharacterization of

income/loss.

D. Other Activities

D.1. Identifying the Issues

(1) Successful entertainers, producers, editors, etc., often invest their disposable

income in other, unrelated business activities. Sometimes these "business

activities" closely approximate an activity not engaged in for profit such as

racehorses, cattle ranches, etc. (These should be questioned under the

provisions of IRC § 183.) At other times, the investments are in those activities

which are intended to be used to decrease taxes paid by the taxpayer, without

incurring significant risks. The entertainment professional is usually very

involved in the entertainment industry. He or she may be away from home for

long periods of time filming and/or performing, and is generally not able to

participate in the other investments. In addition, the entertainment professional

often has a business manager who makes all business decisions for him or her,

including whether or not to make additional investments. Because of the unique

time requirements of a profession in the entertainment industry, often these

other business activities (partnerships, S corporations, Schedules C, or

Schedules F) are likely to be passive activities for the taxpayer and any overall

losses should be appropriately limited.

(2) Other persons may be investors in the various business activities of the

entertainment industry and may be classifying these activities as non-passive. A

minority producer or silent investor, for example, may have invested significant

amounts of capital in a production, but may have little to do with the day-to-day

decisions necessary to complete the activity. These persons may be

experienced with financing transactions but have no real experience or

knowledge in the entertainment field. Even if knowledgeable, they may be fully

engaged in other professions from which they earn the funds to invest in the

entertainment industry.

D.2. Law

(1) IRC § 469(a) disallows (suspends) any overall losses from passive activities of

the taxpayer. A passive activity is a trade or business activity (not "an activity

not engaged in for profit") in which the taxpayer does not materially participate.

IRC § 469(c)(1). (See above for tests of material participation.) The rules apply

regardless of how the taxpayer owns the business (whether as a Schedule C or

F activity, a partnership, or S corporation).

D.3. Audit Techniques

(1) Determine the nature of the activity and how the taxpayer/entertainment

professional is participating.

(2) If the activity appears to be in the nature of an activity not engaged in for profit,

pursue the IRC § 183 issue first. If it can be established that the activity is an

activity not engaged in for profit rather than a true trade or business, the losses

are disallowed permanently. If the taxpayer meets enough of the requirements

in the regulations to call the activity a true trade or business, consider IRC §

469 next.

(3) Determine if the taxpayer is materially participating in the activity. (See Temp.

Treas. Reg. § 1.469-5T(a) for the criteria.) Temp. Treas. Reg. § 1.469-5T(f)(4)

allows the taxpayer to use any reasonable means to substantiate his or her

participation, including diaries, log books, or narrative summaries. The narrative

summary must be substantiated using some reasonable means, however, not

just some unsupported statements.

(4) When considering these facts, use all the data you have already determined

about the taxpayer's travel, life-style, schedule, personal interests, etc. Ask

additional questions about his or her statements concerning his or her

participation. For example:

• If the taxpayer was busy making two or three movies or performing

during the year at distant or foreign locations, how can he or she be

materially participating in an unrelated partnership near his or her home?

• If the taxpayer's life-style typically involves many late nights or other

activities which take up long hours each day (such as filming a weekly or

daily television show), what time is there left over to devote to other

business activities?

• If the taxpayer hires many specialists to make all the decisions

concerning the activity (such as breeders and trainers for horse racing

activities), how is the taxpayer participating?

• What personal knowledge does the taxpayer have about the practical

operation of the activity? (For example, if the taxpayer owns a cattle

ranch, what does he or she know about ranching? What experience

does he or she have in this business?)

• How can the taxpayer be putting in 500 hours in many different activities,

including his or her primary profession? Remember, full-time

employment during a year is generally 2,080 hours.

• What role does the business manager play in the operations of the other

activity? The participation of the taxpayer's spouse will be counted as his

or her participation (IRC § 469(h)(5)), but not the participation of any

other family member or his or her business manager.

(5) Often the taxpayer's representative will not be able to fully answer your

questions about how the taxpayer spends his or her time. If the representative

cannot fully and clearly respond to these questions, an interview with the

taxpayer may be necessary.

(6) If the taxpayer cannot establish that he or she has materially participated in the

other trade or business, the activity should be classified as passive. If there are

losses flowing from this passive activity to the return, the allowable passive

loss, if any, must be recomputed.

(7) For taxpayers who are investors in entertainment businesses (minority

producers, silent investors, etc.), determine if the taxpayer is materially

participating in the business or simply investing capital. When participation for

these persons is considered, remember that they should be in activities that

involve day-to-day operations of the business. Merely visiting the set to "see

how things are going" does not constitute participation. In addition, merely

reviewing financial reports or statements, or compiling financial data about

operations for one's own use is an investor activity and generally will not count

as participation. The participation must be "substantial" and bona fide, not

merely as an interested investor.

E. Conclusion

(1) The rules of IRC § 469 can be encountered in entertainment cases in a variety

of ways. The ones stated here are most common but are by no means all

inclusive. If a question concerning passive loss limitations is encountered, and

the answer is not clear, research the issue further or seek other technical

advice. Also see the Passive Activity Loss Audit Techniques Guide.

VI. Travel and Transportation Issues

(1) Travel and transportation expenses can be incurred in all of the profit

generating activities for taxpayers in the entertainment industry. In determining

the allowable deduction, it is necessary to distinguish between travel and

transportation expenses.

• Travel expense generally includes expenses while away from home

overnight.

• Transportation is generally the expense of locomotion within your tax

home.

A. Travel

(1) Travel and mileage can be incurred in all three of the profit generating activities

for taxpayers in the entertainment industry (performing, job searching, and

maintaining skills). Because of the nature of the industry, often the first step

necessary to establish travel expense is to establish the taxpayer's tax home.

A.1. Tax Home

(1) Generally, an individual's tax home is the general area or entire city in which the

business is located. The location of the taxpayer's family home does not matter.

In some instances, a taxpayer may be considered as traveling away from home

even while working in the city in which that individual and his or her family live.

(2) Revenue Rulings 60-189 and 73-529 provide that, generally, a taxpayer's

"home," for purposes of IRC § 162(a), is the taxpayer's regular or principal

place of business, without regard to the location of the taxpayer's residence.

Revenue Ruling 93-86 addresses temporary (expected to be one year or less)

versus indefinite regular or principal place of business.

(3) A taxpayer's principal place of business encompasses the entire city, or general

area, in which the taxpayer most frequently works.

(4) If the taxpayer works in more than one location in the tax year, the guideline for

determining which location is the taxpayer's tax home were established in

Markey v. Commissioner, 490 F.2d 1249, 1256 (6th Cir. 1974) which set forth

the following three factors to determine which location is the taxpayer's tax

home:

• Total time spent in each place.

• Degree of business activity in each area.

• Relative amount of income in each area.

(5) The fact that a taxpayer's business is of such a nature that he or she has no

principal place of business will not preclude a taxpayer from having a tax home

at the taxpayer's regular "place of abode." There are three objective factors, set

forth in Revenue Ruling 73-529, used to determine (with respect to the tax year)

whether the claimed abode is "his regular place of abode in a real and

substantial sense." These factors are:

• The taxpayer performs a portion of his or her business in the vicinity of

the claimed abode and at the same time uses the claimed abode for

lodging.

• The taxpayer's living expenses at the claimed abode are duplicated

because of business necessitated absence.

• The taxpayer either: (a) has not abandoned the vicinity on which both his

or her historical place of lodging and claimed abode are located, (b) has

family members currently residing at the claimed abode, (c) uses the

claimed abode frequently for lodging.

(6) If all three objective factors are satisfied, the service will recognize the

taxpayer's "tax home" to be at the claimed abode.

(7) If two of the three objective factors are satisfied, all the facts and circumstances

must be "subjected to close scrutiny" to determine whether the taxpayer has a

tax home or is an itinerant.

(8) If a taxpayer fails to satisfy at least two of the three objective factors he or she

will be regarded as an itinerant who has his "home" wherever he or she

happens to work, and thus, cannot be "away from home" for purposes of IRC §

162(a).

A.2. Employment Related Travel

(1) Travel incurred while the taxpayer is gainfully employed may or may not be

reimbursed. It is up to the taxpayer to prove the job involved a non-union and

possibly a non-reimbursed employment situation (see Chapter 1, section titled

Reimbursements). If there is no reimbursement available and it was necessary

to travel or incur mileage to a location that was not the principal work site, the

taxpayer is probably entitled to a travel or car expense or allowance.

(2) If the taxpayer is a member of a guild or union, he or she is probably entitled to

reimbursement, per most union contracts. In general, however, it is up to the

taxpayer to prove that reimbursement was not available for each job.

A.3. Domestic Travel

(1) When a taxpayer incurs travel within the United States, after verifying that, the

travel will qualify under IRC § 162 as business related, it is necessary to

determine the amount of the expense that is allowable. For domestic travel, the

cost of traveling to and from the business location will be allowed in full, if the

primary purpose of the travel is business.

(2) Lodging and meals will be allowed for business-related days. If the taxpayer

makes additional stops at other locations, it is necessary to determine which of

the locations and days are business and which are personal. Treasury

Regulation § 1.162-2 explicitly considers the amount of time spent on each type

of activity; if the trip is considered primarily personal, then only business

expenses at the destination are deductible (not transportation to and from or

lodging).

A.4. Foreign Travel

(1) Travel outside the United States must also be shown to meet the business

relationship requirements of IRC § 162. However, once shown to be allowable

under IRC § 162, additional restrictions apply. The primary purpose test applied

to domestic travel does not generally apply to foreign travel. Not only must the

lodging and meals be limited to business days, but also the basic cost of

traveling to and from the foreign location must be allocated based on the

number of bona fide business days, and the total number of days in foreign

travel status. Treas. Reg. § 1.274-4(f). There is an exception that can allow a

"primarily business" trip to not have to be allocated if the trip is less than a week

and less than 25 percent of the total time was personal IRC § 274(c)(2); Treas.

Reg. § 1.274-4(b).

B. Transportation

(1) As with any other business, some taxpayers may incur deductible transportation

expenses in the course of their business. The same substantiation rules apply

to people in the entertainment industry as to any other taxpayers.

(2) Commuting expense is not deductible even though it is ordinary and necessary.

Even where the taxpayer goes back and forth from home more than once a day

(as an actor might have to do), the expense of the commute does not become

deductible. O'Hare v. Commissioner, 54 T. C. 874 (1970); Sheldon v.

Commissioner, 50 T.C. 24 (1968). The exception to this rule is where the

taxpayer's home is her or his principal place of business; in that case travel to

and from home would no longer be "commuting" and could thus be deductible.

See Curphey v. Commissioner, 73 T.C. 766,777-78 (1980). (Nevertheless, see

office in the home to determine if the taxpayer qualifies.)

(3) Many taxpayers in the entertainment industry have many short-term jobs. The

usual claim is that these are all temporary jobs; and therefore, "temporary job

sites." When the taxpayer has no "regular business location," the entire local

commuting area is his or her regular business location and transportation to any

place in that area is commuting.

(4) The latest authority for temporary jobs is Revenue Ruling 99-7, 1999-5 I.R.B. 4,

1999 WL 15135, 1999-1 C.B. 361.

(5) If the taxpayer has at least one regular work location and the taxpayer's

residence is not the principal place of business, the deductibility of

transportation expenses depends on whether the temporary work is in the same

trade or business as the taxpayer's regular work location under this Ruling. If

the temporary work is in a different trade or business, the taxpayer may only

deduct transportation expenses incurred in going between the taxpayer's

residence and a temporary work location outside the metropolitan area where

the taxpayer lives and normally works. If the temporary work is in the same

trade or business, the taxpayer may deduct all transportation expenses incurred

between the taxpayer's residence and the temporary work location regardless

of location. The Ruling also codifies the one-year test for the meaning of

"temporary".

(6) Taxpayers who must travel from one business location to another are entitled to

the expense of going between job sites. Producers often provide a bus for cast

and crew to nearby locations, but some may prefer to drive themselves. Where

an employer has made a benefit available to the taxpayer, but the taxpayer

prefers to use his or her own, there is no deduction. Kessler v. Commissioner,

T.C. Memo 1985-254.

(7) Taxpayers in the entertainment industry are entitled to a deduction for mileage

incurred while searching for employment. They must comply with the rules of

IRC § 274(d) in order to qualify for the deduction. This is especially true for

travel incurred while trying to promote oneself. The use of historical success will

also be of importance when considering the allowance of such travel. The

taxpayer must prove that in the past there has been a measure of success

while travelling to promote himself or herself. A narrative may be a good start.

(8) Auditions are a common reason that taxpayers who perform in the

entertainment industry incur travel and mileage. Usually if this expense is well

documented, the taxpayer is entitled to the deduction.

(9) Continuing education is common in the entertainment industry. Taxpayers are

usually allowed applicable car expenses for qualified education expenses. See

Chapter 7, Educational and Research Expense section.

VII. Recordkeeping Issues

A. Meals, Entertainment, and Gifts

(1) Generally, taxpayers in the entertainment industry may be entitled to deduct

expenses for business meals, entertainment, and gifts. Once the expense has

been shown to be ordinary and necessary, in the taxpayer's business, the

specific recordkeeping requirements must be met. Also see Publication 463,

Travel, Gift, and Car Expenses, for more information.

A.1. Meals and Entertainment

(1) To deduct meals and entertainment expenses, the taxpayer must first establish

that the expenses are directly related to the active conduct of the taxpayer's

trade or business per IRC § 274(a)(1)(A) and ordinary and necessary to his or

her business or profession per IRC § 162(a). The taxpayer must also meet the

requirements of the substantiation rules of IRC § 274. Further, regarding meals

specifically, there is a limitation that it is "not lavish or extravagant under the

circumstances" per IRC § 274(k)(1)(A).

(2) Meals are fully deductible by an employer when food and beverages are

included in the employee's earnings as compensation (IRC § 274(n)(2)(A),

274(e)(2) and Treas. Reg. § 1.274-12(c)(2)(i)). See also IRC § 274(e)(4), Treas.

Reg. § 1.274-12(a), and Treas. Reg. § 1.61-21.

(3) The cost of meals and lodging qualifying for the exclusion under IRC § 119 is

generally deductible by an employer as an ordinary and necessary business

expense under § 162. However, under § 274(n), the deduction of meal costs is

generally limited to 50% of the amount expended.

(4) Food and beverages deduction of the employer is limited to 50 percent under

the following situation:

• Food and beverages are ordinary and necessary expenses under IRC §

162(a),

• Paid or incurred during the taxable year in carrying on a trade or

business, and

• Food and beverage are not lavish or extravagant under the

circumstances.

(5) Refer to IRC § 274(n)(1) and Treas. Reg. § 1.274-12(c)(2)(i)(E) Examples.

(6) Prior to 2018, IRC § 274(n)(2)(B) provided that food and beverages excludable

from income as de minimis fringes under section 132(e) were not subject to the

50% deduction limitation and were therefore fully excludable. The Tax Cuts and

Jobs Act of 2017 removed this provision for tax years after December 31, 2017.

(7) Starting in 2026, section 274(o) takes effect. IRC § 274(o) provides that no

deduction is allowed to an employer for meals that are excluded from employee

income under section 119 and no deduction is allowed for any expense for the

operation of a facility described in section 132(e)(2), and any expense for food

or beverages, including under section 132(e)(1), associated with such facility.

A.2. Gifts

(1) Taxpayers (husband and wife are considered to be one taxpayer under IRC §

274(b)(2)(B)) must show that the gift was ordinary and necessary to their

profession.

(2) Under IRC § 274(d) taxpayers must further show the following elements. Also

see Treas. Reg. § 1.274-5T(b)(5).

• Cost of the gift

• Date of the gift

• Description of the gift

• Business purpose or reason for the gift, or nature of business benefit

expected to be derived as a result of the gift

• Occupation or other information relating to the recipient of the gift,

including name, title, or other description sufficient to establish a

business relationship to the taxpayer.

(3) In addition to the elements to be proved, IRC § 274(b)(1) limits the deduction to

$25 per person per year. This limit does not apply to any item for general

distribution which costs less than $4 and has the giver's name imprinted on it.

B. Educational and Research Expenses

(1) Continuing education may be deductible by taxpayers in the entertainment

industry. Qualifying expenses include books, supplies, tuition, and applicable

car expense. The course must directly relate to the taxpayer's trade or business

but should only maintain or improve skills and must not qualify the taxpayer for

a new trade or business. See Treas. Reg. § 1.162-5. See e.g., Lang v.

Commissioner, T.C. Memo. 2010-152 (voice over actor allowed to deduct voice

over substantiated amounts related to voice over classes, including various

acting books).

(2) In an effort to maintain or improve skills, some taxpayers claim a number of

unusual expenses. Some of the larger items claimed include the cost of owning

and maintaining airplanes, motorcycles, and horses. Taxpayers' claims that

their expenditures on these items are business-related may arguably have a

germ of truth but these items also present so great an opportunity for abuse that

they merit careful scrutiny of the particular facts and circumstances of each

case. Also, those items are generally considered listed property under IRC §

280F. Consequently, to claim expenses related to such property, the taxpayer

must show not only that these expenses are ordinary and necessary to their

trade or business under IRC § 162, they must also meet the strict substantiation

requirements of IRC § 274.

(3) If the taxpayer is an employee, then under IRC § 280F(d)(3), he or she receives

the tax benefits of "listed property" only to the extent it can be shown that the

property was used for the convenience of the employer, and was required as a

condition of his employment.

(4) Instead of IRC § 162, the taxpayer may invoke IRC § 212, contending that the

plane, car, or house was "income producing property," the upkeep of which is

deductible under IRC § 212. To claim a deduction under IRC § 212, the

taxpayer must still prove that ownership of the property was profit-motivated

under IRC § 183. Ask for history of the income earned by this property

(presumably rentals).

(5) It is in this area that taxpayers often attempt to justify attending the theater or

concerts, or viewing movies and videos without meeting the requirement of IRC

§ 274. For more on viewing, see Chapter 8, section titled Keeping Current.

(6) Research expense is incurred for a variety of reasons. If a taxpayer is incurring

the expense for a specific project, there must be sufficient documentation to

trace the expense to that project. If there is no reasonable expectation of

income being produced on that project for the current tax year, the expense

should be capitalized. If the research is in anticipation of specific employment,

there should be sufficient evidence presented to show the expectation or

possibility of employment. In all cases, the expense must be ordinary,

necessary, and reasonable.

(7) Some tax practitioners attempt to deduct the otherwise capital expenditure as

current research expenses under IRC § 174. This is not a valid position.

Treasury Regulation § 1.174-2(a) provides that the term "research or

experimental expenditures," as used in IRC § 174, means expenditures

incurred in connection with a taxpayer's trade or business which represent

research and development costs in the experimental or laboratory sense. The

regulation further provides that the term does not include expenditures paid or

incurred for research in connection with literary, historical, or similar projects.

C. Telecommunication Expense

(1) This deduction is common among taxpayers in the entertainment industry. The

expense must be ordinary and necessary to the taxpayer's trade or business.

More specifically, it must be necessary, which will be the key to deductibility.

(2) Cell phones were removed (taken out of IRC § 280F) as listed property starting

with tax year 2010. They also can be treated as a de minimis fringe benefit

when provided by the employer primarily for non-compensatory business

purposes. Notice 2011-72, 2011-38 I.R.B. 407.

(3) To determine the allowable deduction amount, the taxpayer must show

specifically how the allocation was derived. A general verbal explanation is not

sufficient. Specific allocation through monthly sampling would probably be the

best technique.

(4) Telephone expense incurred by a taxpayer on behalf of an employer, must be

required by that employer. In general, most productions do not require

performers to use a phone for most of the work that a production entails.

(5) If the expense is incurred for job search, the taxpayer must document which

calls are business calls.

VIII. Personal Expense Issues

A. Keeping Current

(1) Entertainers have been known to make a convincing argument about how much

they have to spend to "stay on top" or keep current; nevertheless, most of these

items typically overlap too much with personal expenses to constitute business

deductions.

(2) The following steps identify whether a typical personal expense is deductible

under IRC § 162.

• Determine whether the expense is allowable under IRC § 162.

• If the expense is not allowable under IRC § 162, the deduction is not

allowed. If the expense is allowable under IRC § 162, next determine

whether the records satisfy the requirements of IRC § 274.

• If the records do not satisfy IRC § 274, the expense is not allowed. If the

records do satisfy IRC § 274, the expense is allowed.

A.1. Cable TV

(1) Taxpayers in the entertainment industry often try to deduct amounts paid for

cable television. They must be able to show how cable TV, as a whole,

specifically benefits their employment. IRC § 274 places strict limits on

deductions for items which are "generally considered to constitute amusement,

entertainment, or recreation." Such items are thus deductible only where there

is a clear tie to particular work.

(2) Cable TV may also be deducted as an educational or research tool. To qualify

as an educational tool, it must directly benefit the taxpayer's trade or business.

This must be shown through written documentation. In addition to the

recordkeeping requirements of IRC § 274(a), there should be some note-taking

showing exactly what educational benefit was achieved. This may take any

form that is reasonable for the particular event. The easier it is to trace the

expense to a particular event or class, the better the chances of an allowable

deduction.

(3) If the taxpayer has a spouse or children in the household, their personal use of

the cable television should also be considered in determining any allowable

deduction.

A.2. Movies and Theatre

(1) The same situation exists for movies and theatre. Movies and theatre are

deducted as entertainment or education/research. Either way, the same

documentation requirements exist. The taxpayer must specifically identify how

the movie or play directly applied to his or her career at the time through the

appropriate documentation. Even where a deduction for a particular event is

allowed such as a theatre ticket to a certain play to research an upcoming film

role, only one ticket would generally be deductible.

(2) Writers Guild, Directors Guild, and various professional groups offer regular

screenings of new releases to members; thus, membership fees paid by the

taxpayer may already cover at least some of these "necessary" expenses.

Members of the American Film Institute (AFI) and various other organizations

receive free passes to the cinemas. Thus, it cannot be assumed that all tickets

represent an actual cash outlay.

A.3. Appearance and Image

(1) Taxpayers in the entertainment industry sometimes incur unusually high

expenses to maintain an image. These expenses are frequently related to the

individual's appearance in the form of clothing, make-up, and physical fitness.

Other expenses in this area include bodyguards and limousines. These are

generally found to be personal expenses as the inherently personal nature of

the expense and the personal benefit far outweigh any potential business

benefit.

(2) No deduction is allowed for wardrobe, general make-up, or hair styles for

auditions, job interviews, or "to maintain an image."

A.4. Wardrobe

(1) To deduct clothes as a business expense, the following three requirements

must be met: (1) the clothes must be required by the employer, (2) the clothes

must not be suitable for general or personal wear, and (3) the clothes must not

be worn for general or personal wear. Hynes v. Commissioner, 74 T.C. 1266,

1290 (1980); Yeomans v. Commissioner, 30 T.C. 757, 767 (1958).

(2) When the production companies do not provide or pay for the wardrobe;

expenses for costumes and "period" clothing are generally deductible. However,

most union contracts provide for compensation to be given performers who

require special wear. The taxpayer must prove that his or her contract did not

include such reimbursement for the expense to be allowable.

A.5. Make-up

(1) The studio usually provides make-up for performances. Stage make-up that the

taxpayer buys for an audition or a live theatrical performance may be

deductible, if it is not a general over-the- counter product.

A.6. Physical Fitness

(1) Deductions for general physical fitness are not allowable. Usually, if physical

fitness is required for a specific job, the studio will be responsible for the cost

(by either paying it directly or indirectly by reimbursement/allowance). If the

taxpayer was employed in a capacity that required physical conditioning, allow

expenses for the duration of employment if no reimbursement or compensation

was available.

A.7. Security

(1) Physical security is also too personal an item to be deducted, unless there is a

clear business- related aspect to the service. For example, to control fans or

paparazzi during a star's personal appearance (but for such occasions, the

producer of the event would probably bear those costs).

(2) Bodyguards and home security are deemed to be personal expenses. The fact

that the taxpayer is in a high-profile profession is still a matter of personal

choice and does not convert a personal security expense into a business

expense. The expense does nothing to increase the income of the taxpayer and

provides a personal benefit of "peace of mind."

(3) IRC §§ 162 and 274 address heightened substantiation for listed property (but

which doesn't include cell phones anymore), IRC § 262 prohibits personal

deductions: "no deduction shall be allowed for personal, living, or family

expenses" and it does expressly prohibit the first telephone line to the

residence.

B. Court Cases

(1) The Supreme Court has often cited the "familiar rule" that "an income tax

deduction is a matter of legislative grace and that the burden of clearly showing

the right to the claimed deduction is on the taxpayer." Indopco, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); Interstate Transit Lines v.

Commissioner, 319 U.S. 590, 593, 63 S.Ct. 1279, 1281, 87 L.Ed. 1607 (1943);

Deputy v. Du Pont, 308 U.S. 488, 493, 60 S.Ct. 363, 366, 84 L.Ed. 416 (1940);

New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78

L.Ed. 1348 (1934).

(2) There are over 1,000 court cases that address the non-deductibility of personal

expenses. A few that pertain specifically to the Entertainment Industry are:

• Tilman v. United States, 644 F. Supp. 2d 391 (holding videos, clothes,

gym memberships, computers, recording equipment, haircuts, and

manicures are nondeductible personal expenses)

• Oliver v. Commissioner, T. C. Summary Opinion 2008-124 (television,

newspapers)

• Richards v. Commissioner, T.C. Memo. 1999-163 (holding research

trips, television, videotapes, magazines, audio equipment were

nondeductible personal expenses)

• Kroll v. Commissioner, 49 T.C. 557 (1968). (holding that expenses of the

mother of a child actor were inherently personal and nondeductible

personal expenses and that private school expenses for the child actor

were also not deductible.)

• Sparkman v. Commissioner, 112 F.2d 774 (1940) (holding that where

the taxpayer, who was motion picture actor and radio performer,

purchased two sets of artificial upper teeth, in order to eliminate a hiss

which had developed in his speech and to restore to taxpayer perfect

enunciation which was necessary in his profession, but taxpayer did not

prove that the teeth were to be used for business purposes only, amount

paid for the teeth was not an "expense incurred in carrying on a trade or

business" but was a "personal expense" and no part thereof was

deductible in computing for taxation purposes the taxpayer's net

income.)

• Westerman v. Commissioner, T.C. Memo. 2011-204 (holding the

taxpayer was not entitled to deduct some studio time expenses,

automobile, travel, or meals and entertainment expenses, but was

entitled to deduct guitar repair, practice studio and disk expenses)

• Hynes v. Commissioner, 74 T.C. 1266 (1980). (holding that taxpayer, a

staff announcer and television news writer, could not deduct expenses of

wardrobe, laundry, or dry cleaning, which were not significantly different

from those of other business people limited to conservative styles and

fashions even though he was required to maintain "physical appearance

suitable for services as a television announcer," but was not reimbursed

by employer the costs).

IX. Other Issues

A. Office In The Home

(1) In the entertainment industry the issue of home office frequently arises.

Taxpayers usually claim their home office is used for keeping records, making

telephone contacts, rehearsing, and a myriad of clerical chores. While this may

well be true, the issue of deductibility remains.

(2) IRC § 280A severely restricts the deduction for office in the home. To claim a

deduction for business use of a taxpayer's personal residence under IRC §

280A(c)(1), the taxpayer must establish that a portion of his dwelling unit is (1)

exclusively used, (2) on a regular basis, (3) for the purposes enumerated in

subparagraphs (A), (B), or (C) of IRC § 280A(c)(1), and (4) if the taxpayer is an

employee, the office is maintained for the convenience of the employer.

Hamacher v. Commissioner, 94 T.C. 348, 353-354 (1990).

(3) Regular use means on a continuing basis, not just occasionally.

(4) Exclusive use means that the area that serves as an office must be a

distinguishable area used only for qualified business use. Moreover, all use of

the office must be qualified use. (See multiple businesses.)

(5) Under IRC § 280A(c)(1), qualified business use must be one of the following:

• As the principal place of business.

• As a place to meet with patients, clients, or customers in the course of

the trade or business.

• A separate structure not attached to the dwelling unit.

• A designated storage space for inventory in the trade or business of

selling products at retail or wholesale.

A.1. Principal Place of Business

(1) Principal place of business includes a place used for administrative and

management activities if there is no other fixed location where such activities

are substantially conducted. IRC § 280A(c).

(2) If the taxpayer meets the exclusivity requirement, the next most frequent of the

above issues in the entertainment industry, is the principal place of business. In

Commissioner v. Soliman, 506 168, 175-177, (1993), the Supreme Court laid

out a two-part test to determine whether a taxpayer's residence qualifies as a

principal place of business: (1) the relative importance of the activities

undertaken at each business location; and (2) the time spent at each location.

However, after the Supreme Court's decision in Soliman, Congress added

language following IRC § 280A(c)(1)(C), to define "principal place of business"

for tax years after 1998, as including "a place of business which is used by the

taxpayer for the administrative or management of any trade or business of the

taxpayer if there is no other fixed location of the trade or business where the

taxpayer conducts substantial administrative or management activities of such

trade or business." The Taxpayer Relief Act of 1997, Pub. L. No. 105-34, §

932(a), 111 Stat. at 881; Thunstedt v. Commissioner, T.C. Memo. 2013-280

(holding that taxpayer was not entitled to home-office expense deduction,

although he used his home in connection with his art business, absent evidence

of what portion of his home was used exclusively on a regular basis as the

taxpayer's principal place of business.); Beale v. Commissioner, T.C. Memo.

2000-158 (holding the taxpayer was not entitled to deductions for home office

expenses, as he failed to prove that his residence was his "principal place of

business").

A.2. Deductible Amount

(1) The home office deduction cannot exceed the gross income from the activity,

reduced by the home expenses that would be deductible in the absence of any

business use (mortgage interest, property taxes, etc.) and the business

expenses not related to the use of home. IRC § 280A(c)(5).

A.3. The Simplified Method – Calculating the Home Office Deduction

under Rev. Proc. 2013-13

(1) For tax years beginning on or after January 1, 2013, taxpayers may elect to

compute the home office deduction by using the simplified safe harbor method

provided under Revenue Procedure 2013-13. Rev. Proc. 2013-13, 2013-6

I.R.B. 478. Under the safe harbor, taxpayers may claim a home office deduction

equal to $5 times the number of square feet of the home office, subject to

inflation and not to exceed 300 square feet. This safe harbor is an alternative to

the calculation and allocation of actual expenses, so actual expenses cannot

also be deducted. It may not be used for taxpayers is reimbursed by an

employer for home office expenses.

A.4. Employees

(1) As with any industry, an employee will only be able to deduct office in the home

when all requirements are met and the home office is for the convenience of the

employer. An employee's use of a home office is for the convenience of his

employer where: (1) the employee must maintain the home office as a condition

of employment; (2) the home office is necessary for the functioning of the

employer's business; or (3) the home office is necessary to allow the employee

to perform his duties properly. Hamacher v. Commissioner, 94 T.C. 348, 358

(1990). The home office must not "be a purely matter of personal convenience,

comfort, or economy with respect to the employee."

A.5. Personal Service Corporation

(1) Individuals who have formed a personal service (C) corporation may still deduct

business use of their home, but the creation of the corporate entity would give

rise to separate issues, for example, the corporation would have to rent the

premises from the taxpayer. This may, in turn, give rise to self-rental issues.

A.6. Multiple Business Activities

(1) When a taxpayer has multiple business activities that use the home office, all of

the activities for which the office is used must meet the requirements of IRC §

280A(c)(1). If any of the activities uses the home office and does not meet the

requirements, the exclusive use test is not met and no deduction is allowed.

Hamacher v. Commissioner, 94 T.C. 348, 358 (1990).

(2) The taxpayer in Hamacher, was an actor who performed on stage, screen, and

radio as an independent contractor. He was also employed at one theater as an

acting instructor and administrator. His employer provided him with an office at

the theater, but the taxpayer also set up an office in his home. The home office

was used in connection with both his employment and his self-employed

activities.

(3) The Tax Court found that the employer did not require the taxpayer to do any

work at home. The home office may have been helpful but was not for the

convenience of the employer. It was not necessary for the court to determine if

the home office would have qualified solely in conjunction with the taxpayer's

self-employment. Since the use with regard to the taxpayer's employment was

not qualified, the exclusive use test was not met and no office in the home

deduction was allowed either on the Schedule A or Schedule C.

(4) In addition to the obvious expense for office in the home, this issue has impact

on the deductibility of business mileage for what would otherwise be commuting

expense (see Chapter 6 – discussion on Transportation).

B. Activities Not Engaged In For Profit

(1) It is common in the entertainment industry for "creative people" to be driven by

strong compulsions for personal recognition and a passion for artistic

expression. These are strong motivating factors which have little or no bearing

on whether or not a profit is realized. IRC § 183 limits expenses related to

activities which are not engaged in for profit. This provision effectively

eliminates losses from these activities. If the taxpayer is showing losses in

multiple tax years, this provision should be considered.

(2) Examiners are advised to be reasonable in deciding when to apply this

provision. Refer to the ATG for IRC § 183: Activities Not Engaged in for Profit.

C. Job Search

(1) Taxpayers in the entertainment industry commonly incur expenses while

searching for employment. The allowable deductions in this area are generally

the same expenses allowed for any other industry. Commonly allowed

expenses include photo-resume, composites, video resumes, demos, and

publicity photos. There may also be some unusual self-promotion. The expense

must be ordinary, necessary, and reasonable. Make sure the expense relates to

the taxpayers' specific trade.

C.1. Photo and Video Resumes

(1) Photo resumes (generally done in a studio) and video resumes (generally

composites of work the taxpayer has done) are used to show potential

employers the taxpayers' skills and versatility. These resumes generally include

a reasonable expense for recording, editing, and copying. It is generally

expected that they would be reasonable expenses incurred every year.

C.2. Demos

(1) In contrast, we have the "demo." Unlike a demo which is shopped to sell a

"production" (song, video, etc.), this demo is used to promote the talents of the

taxpayer to potential employers. Some of these demos are like full productions

in cost and expended effort, except they are not made for sale. When a major

expense is incurred to produce "demos," it must be determined if these assets

have a useful life of more than one year. These tapes (video or audio) are used

for job seeking or marketing the taxpayer and are, therefore, not subject to IRC

§ 263A. They are, however, IRC § 1231 assets; used in a trade or business,

with a useful life of over one year, and of a character which is subject to

depreciation under IRC § 167 (and IRC § 179 and the limitation thereunder). It

is, therefore, necessary to determine the useful life of these demos. This can be

done by checking when a replacement demo was produced. By verifying that

the demo was actually submitted (or shopped), it may be determined that the

demo is still being submitted and has no determinable useful life. Generally

audio tapes are used from 1-4 years and videos from 2-5 years. This may vary

with the nature and subject matter recorded.

D. Showcasing

(1) Another way performers try to obtain employment is by "showcasing." This

involves staging performances without compensation, or even at a cost to the

performer.

(2) Showcasing expenses can be verified by canceled checks along with contracts,

letters of agreement, or other documentary evidence of the arrangement

between the performer and the producer or club. In the absence of

documentary evidence, a third-party contact can verify the nature of the

expense and any income received by the performer.

(3) When a performer pays an exceptionally high fee to perform, the probability of

the performer receiving a percentage of the door must be considered.

D.1. Actors, Directors, Producers

(1) Many showcase opportunities exist for actors, directors, and producers to

exhibit their skills. Frequently, a producer or other entrepreneur will arrange a

production consisting of unrelated one-scene performances. The individuals

who wish to demonstrate their skills can pay the producer to perform one of the

scenes. Depending on the location, expected attendance, and history of

success, the cost to the individual actor can run from $35 to $200.

(2) A director may pay for the entire scene and recruit his or her own actors. This

generally costs the director up to $1,000. The director may recover some of his

or her expenses from the actors or he or she may absorb the cost.

(3) Many acting coaches or teachers highlight each series of workshops with a

public performance. The coaches invite directors and producers to attend the

performance. These performances are considered another opportunity for the

actors to demonstrate their skills.

D.2. Comedians

(1) Similar showcasing opportunities exist in the area of stand-up comedy. Many

comedy clubs offer 20-minute to one-hour segments for a little or no fee. This

usually runs from $50 to $500 depending on the reputation of the club.

D.3. Musicians

(1) Showcasing opportunities for musicians can create another source of income.

Commonly, musicians are provided an opportunity to perform in a club with only

a moderate fee or without a fee. In exchange for performing, the musician is

expected to encourage his or her fans to attend the performance. The musician

is then entitled to a percentage of the door.

E. Agents

(1) Some agents are now charging a fee for a performer to audition. These fees are

generally around $35. If the performer is successful, the agent will then

represent that performer. This is a new development in the entertainment

industry and not all agents believe it to be ethical. It is, however, acceptable for

the performer to pay these fees to acquire representation or employment.

E.1. Fees and Commissions

(1) Fees paid to an agent (artist's representative) are allowable business expenses

under IRC § 162.

(2) Agent fees are usually 10 percent of gross for any jobs secured by the agent.

These fees are generally limited to 10 percent by SAG-AFTRA. Some foreign

productions or agents may receive up to 15 percent commissions.

(3) The term "plus 10" is used when the agent negotiates for the producer to pay an

extra 10% for the agent's fee so it doesn't come out of the performer's pocket.

This it is done typically with commercials and industrial shoots and not with

movies and episodic TV.

(4) Most performing artists have contracts with their agent or representative, but

this is not mandatory. An oral agreement is sometimes used since the rate is

standard. Residuals are subject to the 10 percent commission only if they are

"over scale." Therefore, minor amounts will not result in fees to agents. When

the residuals are subject to agent fees, the commission is paid to the agent who

obtained the work, not the agent at the time of the payment. The agent

generally does not issue a year-end statement to the performer. This is to avoid

any appearance of being the employer. Most payments (wages or fees) which

are subject to commissions are paid by the employer directly to the agent. The

agent keeps his/her fee and pays the difference to the performer.

(5) Business management fees are not standard. They may vary from 5 to 15

percent of gross or they may be a flat monthly fee. Many actors have their

manager pay all their personal bills and handle their personal affairs as well as

their business matters. Business management fees are allowable in proportion

to the percentage of business versus personal use. Facts and circumstances

will determine the percentage of business use.

F. Moving Expenses

(1) Taxpayers can deduct their moving expenses, subject to certain dollar limits, if

that move is closely related to the start of work at a new location, and the

taxpayer meets the distance test and the time test. IRC § 217.

F.1. Distance Test

(1) The move will meet the distance test if the taxpayer's new main job location is

at least 50 miles farther from his or her former home than the old main job

location was.

F.2. Time Test

(1) If the taxpayer is an employee, he or she must work full-time for at least 39

weeks during the first 12 months after arriving in the general area of the new job

location. The taxpayer does not have to work for the same employer for the 39

weeks. However, the taxpayer must work full- time within the same general

commuting area. The 39 weeks do not have to be consecutive.

(2) Only those weeks during which the taxpayer is a full-time employee or during

which he performs services as a self-employed individual on a full-time basis

qualify as a week of work. Treas. Reg. § 1.217-2(c)(iv). Section (a) of the

regulation deals with employees and (b) deals with self-employed. Under either

scenario, the definition of full-time is determined based on the practices of the

industry at the time and place.

(3) Treas. Reg. § 1.217-2(c)(4)(iv)(a) provides:

• Whether an employee is a full-time employee during any particular week

depends upon the customary practices of the occupation in the

geographic area in which the taxpayer works. Where employment is on a

seasonal basis, weeks occurring in the off-season when no work is

required or available may be counted as weeks of full-time employment

only if the employee's contract or agreement of employment covers the

off-season period and such period is less than 6 months.

(4) For example, a taxpayer who does voiceover work is considered full-time at 4

hours per day. Actors tend to not meet the 39-week test because their move

deals with a short-term job, or jobs, or the hope of finding a job. Time between

jobs is not counted as part of the 39 weeks, unless it is part of a scheduled

break in production and the taxpayer's contract includes continuous

employment before and after the break. Only if a hiatus is included per contract,

will it be included as part of the required 39 weeks.

(5) For self-employed individuals, the regulation provides that where a trade or

business is seasonal, weeks occurring during the off-season when no work is

required or available may be counted as weeks of performance of services on a

full-time basis only if the off-season is less than 6 months and the taxpayer

performs services on a full-time basis before and after the off season. Actors

looking for work would not constitute an "off-season". The performers would

work full time if the work were available.

(6) A move to another region that meets the distance test for greener pastures

does not qualify unless the time test is met. There is no exception for actors or

other entertainment related professions who were looking for work but did not

find it.

G. Personal Service Companies and Personal Holding Companies

(1) Many entertainers form corporations known as "loan-outs". The purpose of the

"loan-out" is to loan out the services of its (usually 100%) shareholder. These

corporations are often personal holding companies (PHCs) and in the case of

actors are also personal service companies (PSCs). PSC is a C corporation

that is taxed at a higher single rate and does not have a progressive tax rate. In

a "loan-out" company if the contract specifically names the shareholder as the

one to perform the job, it is considered to be PHC income (refer to IRC § 542

etc). PHCs can be "loan-outs" for actors, writers, directors, producers, etc. PSC

as it relates to the entertainment industry is for people who are in front of the

camera. PHCs pay additional Personal Holding Company Tax. In the

entertainment industry, PSC and PHC companies usually will not have

excessive compensation issues. The purpose of the tax rate is to encourage

these PSCs and PHCs to pay wages, usually to the shareholders, in order to

have zero taxable income on the corporate returns.

X. Music Business

(1) The next section of this Entertainment Audit Technique Guide will give the

examiner an overview of the music industry. It generally will show:

• How the industry is structured.

• What is involved in making and marketing a record, tape, or compact

disk.

• How income is generated by artists and their operations.

• Books and records that should be available in each industry segment.

• Common industry terminology.

• Accounting practices used in the industry versus proper tax treatment of

various issues.

• Suggested audit techniques regarding specific issues or accounts.

(2) This audit technique guide is a general overview of the industry; it is not all-

inclusive. Examiners should exercise their own initiative, consistent with

applicable statutes, regulations, administrative pronouncements, and case law.

No interpretation of the law discussed in this audit technique guide is to be cited

as authority to taxpayers or used in the disposition of any case. Interpretation of

the law should be made by the individual examiner working the case.

(3) Guidelines reflected in this audit technique guide do not alter any existing

technical or procedural instructions contained in the Internal Revenue Manual

(IRM). If there are inconsistencies between these guidelines and the IRM, the

IRM should be followed.

(4) This section of the audit technique guide contains information on the following

segments of the music industry:

• Songwriters

• Publishers

• Performers

• Record producers

• Managers

• Videos

(5) Following is a list of issues not necessarily unique to the music industry but

probably would not be found in other industries.

• Depreciation on capital improvements to personal residence to maintain

the "image" of a big star.

• Expense to maintain a get-away or vacation home where songwriters

would write or receive their inspiration.

• Stage clothes expenses that were not different from ordinary street

clothes.

• A retired songwriter treated royalties as wages rather than income

subject to self- employment tax because the songwriter believed that

they were no longer active in the music industry.

(6) See Chapter 17, Employment Tax, for more information on employment status

and employment tax relief.

A. General Information

(1) Because the music business attracts various individuals such as songwriters,

producers, entertainers, executives, artists, etc., unique problems in an income

tax examination may occur. Therefore, there is a need to discover how the

industry operates, what sources of income are available to these types of

taxpayers, and how the income flows through the industry to the individual.

(2) Record companies will sometimes pay "up front" to produce a record (see

Advances in Chapter 3 and Payment of Advances and Royalties in Chapter 4).

The record company recovers its full cost from record sales before the artist

gets anything. After costs are recovered, a percentage is deducted for return of

records and the cost of the record jacket. The artist will get a certain percentage

of the suggested retail after the above amounts are deducted. It is suggested

that examiners review the contract to determine if it calls for a percentage of

retail or wholesale.

(3) Performing Rights Organizations (PROs) monitor, collect, and pay performance

and mechanical royalties to its members. Payment schedules vary by

organization. Many payments are made on a quarterly or semiannual basis. All

PROs issue Forms 1099 for royalties paid to their members.

(4) The American Society of Composers, Authors and Publishers (ASCAP) is a

non-profit PRO founded in 1914. ASCAP is the only United States PRO created

and controlled by composers, songwriters and music publishers. The Board of

Directors consists of members who are elected by its members.

(5) The Society of European Stage Authors and Composers (SESAC), the smallest

of the three United States' organizations, is a for-profit PRO founded in 1930.

Today, SESAC no longer is an acronym and is not an abbreviation for anything.

SESAC was founded in 1930 to serve European composers not adequately

represented in the United States.

(6) The Broadcast Music, Inc. (BMI) is the largest PRO in the United States. BMI is

a non-profit organization founded in 1939 because ASCAP increased their fees

and the founders also wanted to represent genres like jazz, blues, and country.

There are smaller and some foreign Performing Rights Organizations. A listing

is contained at the end of this guide.

(7) Payment schedules vary by organization. Most payments are made on a

quarterly or semiannual basis. All PROs issue Forms 1099 on the royalties paid

to their members.

(8) There are different types of royalties, which include mechanical and

performance royalties. Wikipedia.org discusses mechanical royalties and

mechanical licenses as "having their origins in the 'piano rolls'" on which music

was recorded in the early part of the 20th Century. A piano roll is defined

byWikipedia.com as a "music storage medium used to operate a player piano,

piano player or reproducing piano. A piano roll is a continuous roll of paper with

perforations (holes) punched into it. The perforations represent note control

data. The roll moves over a reading system known as a 'tracker bar' and the

playing cycle for each musical note is triggered when a perforation crosses the

bar and is read."

(9) Although, its concept is now primarily oriented to royalty income from sale of

compact discs (C.D.), its scope is wider and covers any copyrighted audio

composition that is rendered mechanically; that is, without human performers:

• Tape recordings

• Music videos

• Ringtones

• Musical instrument digital interface (MIDI) files

• Downloaded tracks

• Digital Versatile Disc (DVD), Video Home System (VHS), Universal

Media Disk (UMD)

• Computer games

• Musical toys, etc.

(10) Wikipedia.org defines performance royalties as: "Performance in the music

industry (and) can include any of the following:

• A performance of a song or composition – live, recorded or broadcast

• A live performance by any musician

• A performance by any musician through a recording on physical media

• Performance through the playing of recorded music

• Music performed through the web (digital transmissions)

(11) It is useful to treat these royalties under two classifications:

• those associated with conventional forms of music distribution which

have prevailed for most part of the 20th Century, and

• those from emerging 'digital rights' associated with newer forms of

communication, entertainment and media technologies (from 'ring tones'

to 'downloads' to 'live internet streaming'."

(12) Mechanical royalties are paid for the reproduction of songs in the form of CD

players or sheet music. This also includes synchronization fees for videos and

music for motion pictures and television films. The publishers keep one-half of

the royalties and distribute one-half to the writers. The writers normally get a

payment statement twice a year as well as a Form 1099 from the publisher.

Quarterly accountings and payments are made. The predominant licensor,

collector, and distributor for mechanical royalties is the Harry Fox Agency.

(13) The royalties received that relate to works created by the artist are subject to

self-employment tax and should be recognized on Schedule C. The royalties

that are related to the works that were not created by the artists are not self-

employment income and should be reported on Schedule E.

B. Digital Music

(1) Prior to the 1995 Digital Performance Right in Sound Recordings Act, there was

no entitlement to compensation for the sound-recording copyright owners

(SRCOs). For example, if you would have heard, UB40's "Red Red Wine" on

the radio, songwriter Neil Diamond and the publisher would have been

compensated through SESAC, but the band and its record label would have

received nothing.

(2) The Digital Performance Right in Sound Recordings Act of 1995 (DPRA) law

mandated royalties to performers which led to the creation of SoundExchange

in 2000. SoundExchange is a digital Performance Rights Organization. This

non-profit organization has the monopoly on collecting and distributing digital

performance royalties to artists and copyright holders (as distinguished from the

publishing copyright discussed earlier).

(3) Royalties are distributed through SoundExchange, for example, at roughly 45%

to the performer, 50% to the SRCO which is most likely the label, and 5% to the

non-featured performers. However, these royalties apply to satellite radio (e.g.,

Sirius XM), internet radio (e.g., Pandora, Spotify), and cable music channels,

but not AM/FM radio. Eliminating the exception that was maintained for

terrestrial (land based) radio has been the subject of legislation in recent years

but nothing has passed.

(4) The broadcasters are free to negotiate with the rights holders, a person or

organization that owns the legal rights to something, which is what Apple has

done with its iTunes Radio. Apple pays .0013 cents per song and 15% of the

advertising revenue. By contrast, Pandora has paid as much as 2.91 cents/hour

as of 2010. It should be noted that these amounts change frequently, as does

the business.

(5) The examiner should keep in mind that SoundExchange is a PRO and that if

the taxpayer created recordings as a featured or backup performer, there's a

good chance they might be receiving some royalties from non-terrestrial airplay.

The amounts won't be great though unless the artist is prominent in the

business.

(6) SoundExchange represents more than 70,000 artists and 24,000 copyright

owner accounts. An artist does not have to be a member to collect royalties

based on the statutory license of DPRA but SoundExchange also maintains

reciprocal agreements with more than 20 international counterparts and it

appears that free membership is required to take advantage of that benefit.

C. Downloads

(1) Regarding downloads, the payments would appear to work the same way as for

a print CD, just with another middleman and with more options for the

independent artist. Apple, for example, keeps 35 cents of every typical 99-cent

download (25 cents of that goes to the credit card company). The remaining 65

cents goes to the label with a typical 8 to 11 cents passing on to the artist.

These amounts change frequently and cannot be relied upon for accuracy.

Apple doesn't work directly with an independent artist. CDBaby and Tunecore

are middlemen that charge the artist to post the music to iTunes ($55/album for

CDBaby), take a percentage (9% for CDBaby), and pass the rest on to the artist

(63 cents per 99 cents a song). Part of the service of the middlemen is the

obtaining of a UPC code for the music, a requirement for any online service.

(2) Besides royalties, artists may earn income through performances, live and

recorded. Overseeing this type of income are unions which provide services to

their members which includes collecting fees earned by their members. The

unions are a good source from which you can obtain income information. A

directory of members in local unions is available upon request from unions

located in your area. The directories are categorized by instruments played,

phone numbers, and social security numbers. The American Federation of

Television and Radio Artists (AFTRA) is the union for the artists. Unions usually

have a record of each job or session performed that was reported to them.

Many payments to artists go through unions; or dues are withheld from the

payments and sent to the union. The union has a set pay scale that its

members receive for their performance on union sessions. In order to capture

all of the income, including non-union jobs, indirect methods to reconstruct

income may be required.

(3) Artists, performers, and promoters may have income from concerts (ticket

sales, concession sales, etc.), much of which is in cash and particular attention

should be given to this during the examination. A promoter buys talent and

places it in an auditorium, stadium, etc. Promoters usually pay the talent 50

percent up front (in the form of check or wire transfer) and 50 percent at the

gate (often in the form of cash). The examiner will need to request all of the

performance contracts to determine how and when the artist is paid.

(4) The promoter may lose money booking acts that do not sell tickets. The

promoter has to pay the auditorium or stadium a guarantee for the dates

scheduled or a guarantee plus a percentage of the box office. A manifest (box

office report prepared on the night of the concert) is used to determine the box

office sales and therefore the split of the money from the concert. The artist's

manager, the promoter, and the ticket agent check the manifest to determine

that each receive the proper percentage. Some states periodically audit these

reports. For concession sales, the auditorium staff attempts to take an inventory

of souvenirs before and after a concert but this procedure is difficult and time

consuming. The promoters (who may or may not be entitled to the percentage

of the concession) usually rely on the integrity of the artist's staff to give a

proper accounting of souvenir sales. Artists receive a percentage of the

souvenir sales which are normally handled by bus drivers and/or band

members. Some artists hire companies to conduct these souvenir sales.

(5) The performing artist is usually a very creative person as far as talent goes, but

may lack knowledge in understanding bookkeeping, taxes, and cash flow. Live

performances are often the main source of income for the artist (especially

unknown artists). Artists generally do not receive significant income from

television performances. These appearances are made for the purpose of

obtaining exposure. Their record sales go hand in hand with concerts, each

supporting the other. Artists can receive numerous Forms W-2 and Forms 1099

because they (particularly band members) work for many companies during the

year. There may be some question as to whether they are employees or self-

employed since their role changes back and forth. Court cases seem to divide

on whether the band members' actions were controlled by the band. In re

Hamlin, Hadsell, Tanner, 1974, 74-2 U.S.T.C. (CCH) ¶9578, , the bankruptcy

court determined that there was no employer-employee relationship between

the band, The Board of Regents, and each of its individual band members

where the band members operated cooperatively, within the meaning of the

fourth example of Rev. Rul. 68-107, 1968-1 C.B. 427, deciding together on

songs and schedules. In Teschner V. Commissioner, T.C.Memo 1997-498, the

taxpayer played on a tour with a band and was subject to its schedules and

song choices and was required to deduct expenses only on Schedule A.

(6) For an artist to work a concert, he or she needs the services of a variety of

people. Depending on the drawing power of the artist, he or she will get 60 to

80 percent of the concert receipts and the promoter will get 20 to 40 percent.

Some artists negotiate for a percentage of the gate while others contract for a

guaranteed flat fee. Examiners should inspect contracts to find this information.

The booking agent for the artist receives 10 percent of the artist's income from

shows. A personal manager gets around 15 percent and a business manager

gets about 5 percent of the artist's gross income. Copies of the booking agent's

itinerary for the artist should be checked against road receipts. Some artists

also have a road manager who travels with them and handles all the road

arrangements. The road manager also keeps up with the trip tickets or

settlement sheet on income and expenses while on the tour. Banquets and

conventions are good money making opportunities for the artists. They should

be on the booking agent's itinerary for the artist along with the regular concerts

and fair dates.

(7) Radio plays a special role in the music industry. There would not be a hit record

if there weren't radio. The program director and music director at each station

control the music that is played. Some stations use the services of

programming consulting companies to help determine the music that is played

on that station. Many stations play only 40 to 60 different records a day. These

records are played over and over again. It is difficult for new artists to get their

records played on radio stations. Therefore, there is a potential for payoffs

(bribes) to station disk jockey's (DJ's) to get them to play certain songs. Initially,

bribes occurred only on soul and pop music radio stations; however, it is

currently prevalent throughout the industry. The form of the payment is not only

cash payment but also luncheons, special entertainment, hotel suites, trips, and

gifts.

(8) There are a number of special problems in the music industry. The first is the

cost that it takes to generate income. Vast sums are spent for travel, clothes,

instruments, bands, buses, motels, and uniforms. There are periods of feast

and famine. There is extensive bartering activity in the industry. It occurs in the

form of swap outs (advertising for cars, advertising for tickets, etc.). There is a

saying in the industry, "If you don't promote, something awful happens-nothing!"

The top 10 to 20 percent of the artists get 80 to 90 percent of the industry gross

income. The other 80-90 percent get the remaining portion.

(9) There are many checks and balances in the industry on income reporting, but

some activities such as playing small clubs for the door receipts, love offerings

at concerts and churches, and concession sales at the small locations, etc.,

present situations where income may go unreported.

(10) The following general questionnaire should be used in all industry examinations

along with the applicable segment questionnaire. (Note: These are

recommended questions. The list is not all inclusive.)

C.1. General Questionnaire:

• Explain all the different roles you play in the music industry. (Such as

performer, songwriter, studio musician, recording artist, promoter, etc.)

• Are you a partner, shareholder or member of any entity? (Such as

partnership, corporation, or LLC etc.)

• Are you self-employed for any of your activities? (Were Schedule "C"

and "SE" filed?).

• From what sources do you receive income?

• How are these sources of income reported to you? (Form W-2, Form

1099, statement, settlement sheet, contractual agreement, partnership

Schedule K-1, etc.)

• Who keeps up with all your records and where are the records currently

located?

• What type of expenses do you incur?

• Who keeps up with your expenses and where are the supporting records

located?

• What contractual agreements do you have through your business?

(Request copies of contracts).

• Have you been examined previously? If so, what were the results?

• What assets have you purchased that you use in your business?

• How have these assets been handled for tax purposes?

• Do you ever receive cash payments? If so, what is done with the

money? (Used to pay bills, deposited into a bank account, etc.)

• Are you a union member? If so, what union(s)?

D. Music Industry Research and Publications

(1) The Country Music Foundation Library located in the basement of the Country

Music Hall of Fame in Nashville, Tennessee, is an excellent source of music

research. The library has current and back issues of trade magazines such as

Music Row Magazine, Billboard, Music City News, etc.; current and back

newspaper articles from around the country; music "textbooks" covering how to

get started in the music business; what managers, agents, producers,

publishers, etc., do; music careers; music business terms; how to open doors

on Music Row; and books on each individual facet of the music business,

including how the companies are set up and what their employees' functions

are. The Library also keeps clippings of newspaper articles by music industry

segment from all over the country.

(2) The manager of the library can assist in pulling the research materials.

However, you must call for an appointment before visiting.

D.1. Trade Magazines

(1) Close Up, the CMA magazine (print and online), includes up-to-date news in

country music, new signings, etc.

(2) Music Row, Nashville's Music Industry Publication, includes music business

news, new companies, new signings, music industry directory, recent concert

grosses, financial pages, etc.

(3) Billboard, a weekly trade publication listing top songs, records, etc., includes

current music news.

(4) Cash Box is an online music magazine.

(5) Pollstar is a weekly guide furnishing tour itineraries, box office results, contact

directories, news items, management of stars, etc.

(6) Performance Magazine is a list of concert and performance dates.

D.2. Books

(1) The Music Business, Crown Publishers, includes how to get started, what

manager, agents, and publishers do, recording process, how records are sold

and distributed, how to get recording contracts. Also includes a glossary of

music business terms.

(2) The Songwriter's and Musician's Guide to Nashville, Writer's Digest Books,

includes list of music business companies in Nashville, how to open doors in

Nashville and on Music Row, when and where certain music organizations meet

in Nashville.

(3) Successful Artist Management, Billboard Publications, includes finding a

manager/artist, contracts, duties of attorneys, accountants, and advisors, music

publishing, merchandising, endorsements, money management.

(4) Music Publishing, Writer's Digest Books, includes publishing and copyright law,

royalties, inside the publishing company, future of music publishing, sample

contracts.

(5) Succeeding in the Big World of Music, Little, Brown, & Co., includes functions

and business responsibilities of music industry personnel such as producer,

engineer, writer, arranger, publisher, manager, etc.

(6) This Business of Music and More of This Business of Music, excellent source of

the music business from getting into the business to tax implications of certain

aspects of the business. These books are being used as the source books for

many people in the music business. Copies of these books are available in the

Music Industry group.

D.3. Other Source Books

(1) Encyclopedia of Music Business Sound Advice

(2) Nashville Red Book

(3) Music Industry Index

(4) Dictionary of Music Production and Engineering Terminology

• NOTE: These books are available through either the public library or the

Country Music Foundation Library.

(5) Music Industry Directories

(6) AFM Membership Directory, musicians

(7) SAG-AFTRA Membership Directory, TV and recording artists

(8) Music Business Directory

(9) Nashville Redbook

(10) Tennessee Production Directory

• NOTE: Other Territories should check with their local unions to obtain

their directories.

E. Music Industry Organizations

(1) The following is a list of unions, guilds, trade associations, and performing rights

organizations that are involved in the music industry.

E.1. Unions and Guilds (listed in alphabetical order)

(1) Actor's Equity Association (AEA or Equity) – A labor union that represents more

than 49,000 actors and stage managers in the United States. Actors' Equity is a

member of the AFL-CIO, and is affiliated with FIA, an international organization

of performing arts unions.

(2) American Federation of Labor – Congress of Industrial Organizations (AFL-

CIO) - A labor union that is the umbrella federation for United States unions,

with 56 unions representing about 12.5 million workers. (Aflcio.org)

(3) American Federation of Musicians (AFM) – A union that represents, negotiates,

administers, and protects contractual rights of more than 90,000 professional

musicians in the United States and Canada.

(4) American Guild of Musical Artists (AGMA) – A labor union that represents opera

and concert singers, production personnel and dancers at principal opera,

concert and dance companies throughout the United States. AGMA is affiliated

with AFL-CIO and a branch of the Associated Actors and Artistes of America

"Four A's". (Musicalartists.org)

(5) American Guild of Variety Artists (AGVA) – A labor union, affiliated with AFL-

CIO, that has 2,800 members and represents performing artists and stage

managers for live performances in the variety field. The variety field includes

(not an all-inclusive list) comics, jugglers, magicians, circuses performers,

theme park performers, comedians & stand-up comics, cabaret & club artists,

nightclub singers, skaters, etc. (Agvausa.com)

(6) Associated Actors and Artistes of America (4As) – 4As is the federation of trade

unions for performing artists in the United States. The following unions belong

to the 4As (not an all- inclusive list):

• American Guild of Musical Artists (AGMA)

• The Actor's Equity Association (AEA)

• Screen Actors Guild-American Federation of Television and Radio

Artists (SAG- AFTRA)

• American Guild of Variety Artists (AGVA)

(7) Screen Actors Guild-American Federation of Television and Radio Artists (SAG-

AFTRA) – These two unions merged in 2012. This union represents over

160,000 professional performers and broadcasters in all media distribution

platforms through contract negotiation and enforcement, expansion of work

opportunities, and other services.

(8) The Songwriters Guild of America (SGA) – An organization that fosters and

protects its membership of American songwriters.

E.2. Trade Associations

(1) Music Business Association (Musicbiz) – Prior to 2013, it was known as

National Association of Recording Merchandise. Music Business Association is

a trade association representing the interests of the merchandising segment of

the recording industry with including retailers, rack- jobbers (take orders but

have manufacturers ship merchandise directly to final consumers), and

independent distributors.

(2) National Academy of Recording Arts and Sciences (NARAS) – The academy is

the sponsor of the Grammy Awards and its 8,000 members include singers,

musicians, songwriters, composers, engineers, and industry professionals.

(3) Recording Industry Association of America (RIAA) – A trade association whose

members create, produce and market 85 percent of all recordings produced

and sold in the United States.

(4) National Music Publishers Association (NMPA) – The National Music Publishers

Association is a trade association with over 3,000 members. The association's

mission is to protect, promote, and advance the interests of music creators.

(5) Harry Fox Agency (HFA) – The National Music Publisher's Association

established HFA to act as an information source, clearinghouse and monitoring

service for licensing musical copyrights. The Harry Fox agency currently

represents U.S. music publishers with mechanical licensing, collections, and

distribution.

(6) National Association of Broadcasters (NAB) – A trade association that serves

and represents radio and television broadcasters.

(7) Nashville Songwriters Association International (NSAI) - The organization is

dedicated to protecting the rights and serving professional songwriters in all

genres of music. The organization has over 5,000 members in the United

States and six other countries.

(8) Country Music Association (CMA) – A trade association of more than 7,100

members that promotes and develops country music worldwide and host the

annual CMA awards.

(9) Gospel Music Association (GMA) – A service organization of more than 4,000

members, including international representation, that promotes gospel music.

(10) Content Delivery and Security Association (CDSA) – Formerly known as

International Tape Association. Content Delivery and Security Association is a

trade association of magnetic and optical media manufacturers and related

industries.

(11) National Association of Music Merchants (NAMM) – A trade association of the

music products industry, representing retailers of musical instruments and allied

products as well as manufacturers, distributors, and jobbers of instruments and

accessories.

(12) Entertainment Merchants Association (EMA) – Formerly known as Video

Software Dealers Association. Entertainment Merchants Association is an

international trade association of DVD and video game retailers, distributors

and suppliers.

E.3. Performing Rights Organizations

(1) American Society of Composers, Authors and Publishers (ASCAP) – The

society lobbies, licenses, collects and distributes fees, on behalf of more than

500,000 writers and publishers, for the rights to public performance of their

copyrighted musical works.

(2) Broadcast Music Inc. (BMI) – A licensing organization that lobbies, licenses,

collects and distributes royalty fees for the publicly performed works of its

membership of more than 600,000 U.S. writers, publishers and international

affiliate societies.

(3) Society of European Stage Authors and Composers (SESAC) – A performing

rights organization of songwriters and publishers that licenses and collects fees

for the use of its members' works.

(4) Sound Exchange – An independent digital performance rights organization that

collects and distributes digital performance royalties to artists and copyright

holders.

XI. Songwriters

(1) Songwriters are the creative persons of the music industry. A songwriter may

compose music, write lyrics or do both. A songwriter may only write one song

during their career or a number of songs which is called a catalog. Writing a

song is only the first step. Many difficulties arise in publishing and promoting a

song. Because of the difficulties of getting a song published, many unknown

writers have contracts to write exclusively for one publishing company. The

contract will have a detailed description of a financial (royalty) agreement.

(2) Songwriters who have signed exclusive writer's contracts generally are paid a

cash consideration either in a lump sum, weekly payments, or other special

consideration. Under exclusive writer's contracts, payments are commonly

termed advances and are recouped from royalties which otherwise become

payable to the writer.

(3) There are two types of advances:

• Specific – these are recouped from the royalties of specific works.

• General – these are recoupable from the earnings of an entire catalog.

(4) Songwriters receive income from publishers and performing rights

organizations. In general, royalties come from the use of songs during live

performances or on radio and television (performance royalties). The sale of

records, sheet music (mechanical royalties) and the use of songs in plays and

movies also generate royalties (synchronization royalties). Royalties paid for the

use of songs are collected by performing rights organizations and distributed to

the publisher who in turn pays the songwriter usually 50 percent of the royalties.

If a songwriter has collaborated with another songwriter, the royalties will be

split per an agreement between the songwriters. If there is no agreement, the

industry and the courts have placed an equal value on the music and the lyrics.

(5) Some songwriters will do their own publishing through a corporation they have

formed or as a self-employed publisher. If the songwriter is his or her own

publisher, royalties will not have to be split between the writer and the publisher.

This means the income to the songwriter would be twice what it would be if they

were not their own publisher. The disadvantage to being your own publisher is

the added costs of a publisher such as: creating demo tapes, executing

contracts, and promotion.

A. Recordkeeping

(1) Performing rights organizations (BMI, ASCAP, SESAC) and the agencies

collecting mechanical royalties keep records of royalties and provide

songwriters with statements of the royalties earned in a given year. Generally,

songwriters keep a full set of books, including cash receipts and disbursement

journals. In addition, they generally have the statements of royalties earned,

provided by BMI, ASCAP, SESAC and others. These statements can be issued

quarterly, semi- annually or annually.

(2) If there are any deficiencies in a songwriter's records, it usually is not in the

area of songwriting. For example, many songwriters are studio musicians and

the income from that activity is not always reported on the return.

(3) During the initial interview, find out if the individual belongs to any music

industry union. The unions generally keep records of the amount of income that

musicians make from union jobs and this information is available to the union

member upon request.

B. Examination Plan

(1) It is essential that each examination have a well planned initial interview. A

good interview will tie down all potential sources of income. The planning

process should consider large and unusual items, potential copyright sales,

potential unreported income, and potential shifting of income between related

entities.

(2) Interview questions have been developed for the music industry. There is a

general questionnaire that relates to the entire music industry and there are

questionnaires that relate to specific segments of the industry. The general

questionnaire is located in Chapter 10, and the songwriters' questionnaire is

located in Chapter 11. (Note: These are recommended questions. The lists are

not all inclusive. The examiner should use his/her judgment when preparing for

and conducting the interview.)

(3) Initial document requests should contain at least the following items:

• Provide statements from ASCAP, BMI and SESAC showing royalties

received.

• Provide all contracts with publishers and collaborators regarding royalty

arrangements or any other arrangements.

• Provide any employment contracts.

• Show what arrangements are made for royalty advances and how they

were handled on the return.

• Provide all agreements with performing rights organizations.

• Provide agreements with agencies collecting performance, mechanical

or synchronization royalties.

• Provide statements from the unions to which you belong showing the

income you earned during the years under examination.

• If the songwriter has performance income (union and/or non-union),

provide copies of calendar.

C. Audit Issues

C.1. Gross Income and Capital Items

(1) Most songwriters receive the bulk of their income from royalties. Royalties can

be substantiated with the statements from publishers and performing rights

organizations. There may be an issue where advances from royalties not yet

earned have not been reported as income. Advances are not amortizable.

Income from services performed by the songwriter or publisher should be

immediately reported as income from services and not deferred until after

recoupment of the advance. IRC § 61.

(2) Royalties are non-passive under IRC § 469(e) and Treas. Reg. § 1.469-

2T(c)(i)(A). See also, Treas. Reg. § 1.469-2T(c)(7)(1). Royalty income should

not be included on Form 8582 as passive income. There is a single exception in

Treas. Reg. § 1.469-2T(c)(3)(ii)(E) that permits royalties to be treated as

passive income. This exception is highly restrictive and rarely seen.

(3) Examiners should be aware of other sources of income, such as, income

earned where an individual went through his or her union for their engagement.

Remember the union will provide a statement of income earned to the member.

(4) Another issue involves the treatment of the sale of copyrights. Pursuant to IRC

§ 1221(a)(3), a copyright in the hands of the taxpayer whose personal efforts

created the copyrighted property is excluded from the definition of a capital

asset. However, a taxpayer that purchases a copyright from the originator holds

the copyright as a capital asset. The nature of the income is important due to

limitations on the deductibility of capital losses, an individual taxpayer with

excess capital losses would prefer capital gains over ordinary income since

capital losses can only be offset against capital gains and up to $3,000 per year

of the individual's ordinary income. Corporate taxpayers with capital losses

prefer capital gains since none of their capital losses are deductible against

ordinary income. Additionally, the maximum rate at which a taxpayer's net

capital gains can be taxed may be less than the maximum rate for ordinary

income. IRC § 1(h) prevents the taxation of a non-corporate taxpayer's net

capital gains at a rate higher than 28 percent.

C.2. Expenses

(1) This area usually contains numerous issues such as:

• Office in the home expenses have been deducted in excess of income or

the office in the home is not used exclusively for business.

• Vacation homes, etc., are used by songwriters as a retreat and a place

to think. This is not allowable as an ordinary and necessary expense.

• Travel expenses are not properly substantiated, and, in many cases,

include personal expenses.

• Songwriters may claim deductions for contributions to a pension plan

based on wages paid to a spouse.

C.3. Self-Employment Tax Issues

(1) Songwriters are generally considered self-employed individuals. Situations may

exist where retired songwriters are receiving royalties from past works. The

taxpayer may no longer be active in the business but would still owe self-

employment tax on any royalties. There may be circumstances where a

songwriter is an employee such as when they perform all or most of their

songwriting services through an unrelated employer or through a closely held

and controlled corporation of their own.

(2) Although royalties may be reported on Form 1099-MISC as royalty income,

generally the income should be recognized as self-employment income on

Schedule C.

C.4. Related Returns

(1) Generally related returns are partnerships, corporations, and LLC's formed by a

taxpayer to handle the different segments of the industry in which he or she

may be involved. These related companies may be used to shift income

between entities to get the most beneficial tax treatment.

D. Songwriters' Questionnaire

• Do you spend all of your time writing music or do you participate in other

facets of the music industry? If other facets, what are they (publishing,

producing, promoting, performing, etc.)?

• Do you ever participate in sessions? If so, how do you account for the

income you receive from the sessions?

• How many songs have you written? What types of music do you write

(pop, country, rock, gospel etc.)? What songs are in your catalog?

• Do you perform as well as write music?

• Do you write lyrics and music?

• If you collaborate, do you have a written contract stating how royalties

are to be divided? Please provide a copy.

• How do you market your songs?

• Do you publish your own material?

• If not, do you write exclusively for any one publisher?

• If you do have an exclusive writer's contract, were you paid a cash

consideration to enter into the contract?

• Do you have a contract(s) with your publishers?

• Have you ever requested an audit of your publisher's records? If so, did

you recover additional royalties?

• Are any of your songs published in any foreign countries? If so, are they

registered with any foreign publishers and or sub-publishers?

• How are foreign receipts collected?

• Has any money due from a foreign source(s) been frozen by the foreign

country? If so, have you invested the money in any assets within the

country? How and when are you to receive your money?

• Do you have any agreements with the performing rights organizations?

• With whom are the songs registered (BMI, ASCAP, SECAC)?

• What unions and guilds do you belong to?

• Do the unions and guilds collect any income on your behalf? If so, do

they issue Forms 1099, and to whom?

• Do you have a royalty agreement? If so, provide a copy.

• Did you receive Forms 1099 for all your income?

• Do you receive any performance royalties, mechanical royalties or

synchronization royalties? If so, from whom?

• Did you receive any advance royalties? If so, from whom and for how

much? How and when is this income recognized?

• Are these recoupable from specific songs or from general work?

• Have you considered all royalties received as self-employment income?

• Are you aware of any compulsory licenses of your music? If so, how are

royalties paid by them received?

• Who owns the copyright to your songs?

• Have you sold any of the rights in any of your songs? If so, when and to

whom? How did you report income from this sale?

• Have you assigned any rights in your songs? If so, did you receive any

compensation for the assignment?

• Did you have any income from contracts for hire?

• Do you work with any arrangers? If so, how are they paid?

• Who makes demos of your songs? Who incurs the costs of the demos?

If someone other than yourself incurs costs, are they recouped from your

royalties?

• Do you have an office in your home? If so, gather information about

exclusive use, size of office, etc.

• With regard to expenses paid, determine if they are current costs or if

they should be deducted from future royalties.

• Have you made any commercial jingles? If so, from whom do you collect

royalties?

• Are you involved in any litigation?

XII. Publishers

(1) Publishing is defined as a group of rights and responsibilities pertaining to

compensation including the right to:

• Make demo tapes of the song in an arrangement or style that

demonstrates its potential for popular success.

• Market the work to potential performers, recording artists, labels, radio or

television advertisers, and motion picture producers.

• Negotiate, write, and sign all contracts or agreements by which various

users acquire their respective rights for desired uses of a composition.

• Collect and distribute all income from the composition to outstanding

creditors and to all the owners of equity, called participants.

(2) Just as a songwriter has a catalog, a publisher has a catalog. The writer's

catalog consists of songs he or she has written. The publisher's catalog

consists of songs from all writers whose work they publish. Publishers generally

get 50 percent of the royalties from the songs they publish excluding certain

minor items. The remaining 50 percent of the royalties are paid to composers

and lyricist. For example, if the total income from a song is $1,000, the

songwriter will get $500. The publisher retains $500 from which he or she must

pay the costs of making the demo tape and selling the song to the record

company.

A. Recordkeeping

(1) The larger publishing companies are usually corporations that have good

internal control and keep complete sets of books. Smaller publishers are

generally songwriters as well and they do not always keep good records. The

initial interview is crucial in these examinations. The initial interview for

corporations should establish the quality of internal control. Whereas, the

interview for individual returns should establish all sources of income and

determine how personal expenses are paid. It is common for personal

expenses, particularly travel, to be charged as expenses on Schedule C.

(2) There is a unique situation involving publishers in the music industry. There are

three primary performing rights organizations: ASCAP, BMI, and SESAC. A

publisher may have some songs registered with each of these performing rights

organizations. To register with different organizations, a publisher must use a

different name for each organization. Therefore, a publisher that has songs

registered with multiple performing rights organizations will have separate and

distinct entity names they would use when they register with each organization.

These may operate as divisions within one company or they may be separate

corporations, partnerships, or LLCs. Although good records are kept, there may

be issues in related companies that use a different accounting method.

B. Examination Plan

(1) The most important part of the exam plan is the initial interview. Other areas of

importance are employment taxes and high expenses. In addition, close

attention should be paid to related entities. The examiner has to verify that the

expenses that were charged back to the songwriter and not also deducted as a

separate expense somewhere else on the return.

(2) There is usually little opportunity for unreported income in the publishing

business. The income received is from royalties paid by the performing rights

organizations. These organizations submit statements as to the royalties paid.

The statements are also available to the songwriter who will receive half of the

royalties paid to the publisher. Therefore, where the songwriter and publisher

are unrelated, there is little likelihood of receipts being unreported or diverted.

(3) Besides the documents normally requested, an initial document request should

include the following:

• Documents relating to any sales of copyrights or catalogs.

• Royalties statements.

• Forms 1099 or other documents supporting royalty expenses.

• Contracts with songwriters.

• Statements from all performing rights organizations.

C. Audit Issues

C.1. Gross Income

(1) The primary issue in this area is differences in methods of accounting for

income between related entities. Gross income tests for individuals will be

basically the same as for any other examination.

C.2. Expenses

(1) Adjustments in the expense areas will usually be in travel and entertainment

expenses. In addition, smaller publishers may claim office in the home expense

which should be reviewed.

C.3. Employment Taxes

(1) Inquiries should be made about the employment status of persons involved with

the following:

• Performers of demo songs,

• Producers of master demos,

• Makers of master recordings,

• Nonunion musicians,

• Arrangers.

(2) Caution: Extensive questioning of the taxpayer regarding the employment

status of the recipients of Forms 1099-MISC and 1099-NEC may trigger Section

530 relief under the Revenue Act of 1978. See Nelly Home Care, Inc. v. United

States, 185 F. Supp. 3d 653 (E.D. Pa. 2016). Consultation with an Employment

Tax Specialist is recommended. Also, refer to Chapter 17, Employment Tax, for

more information on employment taxes.

(3) Related returns may include separate publishing entities to conform to the

requirements of the performing rights organizations. If the songwriter is a

shareholder, issues with regard to related party transactions including royalty

advances may warrant examination.

D. Publishers Questionnaire

(1) Not all inclusive:

• What functions are performed by you as a publisher?

• Do you engage in any other functions besides publishing? (record

production, promotion, arranging, etc.)

• How do you market songs?

• Do you negotiate contracts for rights in songs? How do you charge for

this?

• Do you incur promotional costs? If so, are they recoupable from the

songwriter?

• Do you have songs that are published in foreign countries? If so, how

are royalties in those countries collected? Do you have a sub-publisher?

(Consider international issues.)

• Has any money due from foreign sources been frozen by the foreign

country?

• If so, have you invested it in any assets within the country? When and

how will you receive the money?

• To what unions and/or organizations do you belong?

• Do you receive finder's fees for promoting songs?

• Do you have any songwriters under exclusive writer contracts? If so,

who?

• Did you have to pay a fee to secure the exclusive writer contracts?

• Do you own any copyrights? If so, how were they acquired? How were

they valued? Do you amortize them? Have you entered into negotiations

to acquire copyrights prior to their renewal period?

• Have you sold any copyrights?

• With whom do you have songs registered (BMI, ASCAP, SESAC, etc.)?

How do you determine which performing rights organization to register

with? What company names do you use for each organization with

whom you are registered? Are these separate corporations,

partnerships, LLCs, etc.?

• Do you receive royalties for the following: mechanical royalties;

synchronization royalties; performance royalties; television and motion

pictures; compulsory licenses? If so, who pays these royalties? Do you

receive Forms 1099?

• Do you receive and disburse songwriters' royalties? If so, do you reduce

the amount due to songwriters by any expenses? Please provide a copy

of a typical royalty statement provided to the songwriters.

• How do you determine the amounts to be paid to songwriters?

• Do you enter into royalty agreements? With whom?

• What type of accounting is made to you for royalties you receive? Please

provide a copy of a typical royalty statement that you receive from each

performing rights organization.

• Do you receive advance royalties? If so, from whom?

• Do you pay advance royalties? If so, to whom?

• Do you issue Forms 1099-MISC or 1099-NEC? If so, do you issue to all

recipients or only those who receive in excess of $600?

• What employees do you have? What services do they perform?

• Do you make demos of songs? Whom do you employ to perform on the

demos?

• How are they paid? Are they considered employees? If not, why?

• Do you make master recordings? Whom do you hire to make the master

recording? Are they considered employees? If not, why? Are you a

producer? If not, who do you employ to produce masters?

• Do you make payments to any musician's union pension and/or welfare

funds?

• Do you issue paychecks to the musicians who work for you?

• Do you work with nonunion musicians? Are they considered employees?

If not, why?

• Do you work with any arrangers? If so, are they employees?

• Are you involved in any litigation?

XIII. Live Performers

(1) The category "live performers" includes taxpayers ranging from the big name

stars to band members and/or local nightclub performers. Examinations found

there is a vast range in the way these various taxpayers conduct business.

A. Stars

(1) "Stars" usually have business managers, road managers, booking agents, etc.

working for them. These individuals manage virtually all of the stars' business

activities. The stars typically have little or no knowledge regarding many of the

questions we ask in an examination about their tax return. (For example, how

was your reported income determined? How were deductible business

expenses determined?) The business manager often has adequate firsthand

knowledge of both the operating and administrative/accounting aspects of the

business and is the best source of information. Therefore, the business

managers should be the primary sources for the initial interview and in most

cases will be representing the taxpayer during the examination.

B. Other Performers

(1) Most band members travel with the stars. In addition, most of them perform

other activities within the music industry when they are not "on the road", such

as doing studio work (recording sessions), performing in local night clubs, song

writing, record producing, etc. Being a band member or a night club performer

is considered a steppingstone to greater things within the music industry.

Therefore, these individuals are usually juggling activities trying to "make it" in

the industry. An examiner should not be surprised to see income and expenses

from these activities combined and reported on the tax return.

C. Recordkeeping

C.1. Stars

(1) Recordkeeping for the "star" is generally very good. Usually, the stars have a

business manager or others who handle their business affairs. An acceptable

bookkeeping system is usually in place. It is not uncommon for a star to be paid

in cash. Even though the "star" may have a business manager, minimum

income probes for cash businesses should still be observed. Examiners should

always request the taxpayer's calendar and all contracts that were in effect

during the taxable year.

(2) A star's performances are usually booked by a booking agent under a

contractual agreement. The contracts may state that the star is to be paid a set

fee, a percentage of ticket sales, or a combination of the two. These contracts

are an excellent source to use to verify income. In addition, an itinerary is

prepared for road trips and is given to road crews, band members, bus drivers,

etc. Reconciliation of the contracts with the itineraries to the income reported on

the books is a good starting place to verify gross income.

(3) A road manager's responsibilities include receipt of payment following a

performance. A portion of the payment will be paid through the booking agent

when the engagement is booked. The remainder will be paid immediately

following the performance. The road manager's role is particularly important

when a contract calls for the star's payment to be based on a percentage of

ticket sales. It is not unusual for the payments to be made in cash. It is also not

unusual for "on the road expenses" to be paid from performance proceeds. An

examiner should be alert to these practices to ensure that income and

deductions have been properly claimed.

C.2. Other Performers

(1) Musicians who have not reached an income level sufficient to hire business

managers often have poor recordkeeping systems. This doesn't appear to be

due to an intent to cheat or defraud the Government; rather, it seems to be due

to the taxpayers' basic lack of knowledge for these types of matters.

D. Examination Plan

(1) When preplanning an examination of a performer, there are numerous sources

of information available. See Chapter 10, Music Industry Research and

Publications. As with any case, adequate preplanning and preparation for the

examination is necessary to conduct a quality examination.

(2) Besides the usual records requested in all examinations, the initial document

request should include all contracts, statements of income earned from the

taxpayer's union, appointment or engagement calendars, and itineraries.

Another source that can be utilized to determine performance income for big

name entertainers is Billboard magazine which publishes a weekly chart

entitled, Boxscore which is compiled by an affiliated publication, Amusement

Business. The chart shows artist names, gross ticket receipts, the number of

tickets sold, capacity of the hall, ticket prices, and geographic locations. If the

examiner is relying on Billboard's concert grosses, then those amounts should

be reconciled to the taxpayer's books and records. Another site that appears to

track concerts is Songkick. This site goes back many years and has data

regarding not only stars but also less known performers.

(3) Additionally, most performers utilize a booking agency to book performance

engagements. The taxpayer's agency will have a listing of concerts which

reflect the contract amounts, dates, etc. and these agencies are another good

source of verifying income.

(4) For band members, night club performers, etc., consider contacting the union(s)

in which the taxpayer is affiliated. The unions keep detailed records regarding

earnings of its members. The unions are usually very cooperative in providing

the IRS with information.

E. Audit Issues

E.1. Gross Income

(1) There are numerous ways a performer can earn income which may never be

reported on an information return such as a Form 1099/W-2, nor would the

performer's union have a record of it. For example, night club performers may

receive cash payments. This is particularly true with a small club, or a one night

performance. In addition, it is a common practice in the industry for stars to

allow band members and other road crew members to man the concession

booths at concerts, where T-shirts, hats, etc. are sold. These individuals are

generally allowed to keep the profit from the sales. Taxpayers who might be

engaged in these activities should be questioned regarding this.

E.2. Expenses

(1) One of the most common audit adjustments is the disallowance of personal

expenses being claimed as business deductions. "Stars" frequently take the

position that since they are in the limelight all the time, virtually everything they

do is "business" and is part of the image making and maintaining process. For

example, a performer may claim deductions for improvements to and

maintenance of their personal residence because tour buses drive by and the

"look" is necessary for the benefit of fans. Performers may claim deductions for

vacation homes and boats which are used by the taxpayer and their colleagues

as places to go and "create". There may also be deductions for clothing (stage

clothes and street clothes), make-up and hair, physical fitness, and security

which the performer claims as necessary expenses to create and maintain their

image.

(2) While a taxpayer's argument is not totally without merit and can even be made

to sound reasonable when presented to an examiner, the examiner should

remember that expenses of a personal nature are deemed personal unless a

taxpayer can prove otherwise. The fact that a taxpayer may derive a peripheral

business benefit from an expense does not convert a personal expense to a

business deduction.

(3) When on tour, it is a common practice for the big name entertainer to provide

the transportation and lodging needed for everyone. Therefore, if an examiner

finds a band member, road crew member, etc. claiming "away from home

expenses" check to make sure the expenses are not reimbursed or paid by the

entertainer. Consideration should be given to contacting the star's business

manager to determine the policy in place at that time.

E.3. Employment taxes

(1) Compliance in the area of employment taxes for performers is generally at an

acceptable level. Business managers for the "star" generally insure that

employees and contract laborers are properly treated. Refer to Chapter 17,

Employment Tax, for more information on employment taxes.

E.4. Related returns

(1) Always ask about any related party activities, related businesses or ventures.

Ask to see the tax returns to determine any related issues.

E.5. Specialists

(1) Examiners should always consider use of a specialist when appropriate in an

examination. Frequently, you will find big name entertainers traveling abroad for

performances. Use of an international examiner should be considered

whenever income from foreign sources is received and seems questionable.

F. Live Performers Questionnaire

(1) Not all-inclusive:

• How are live performances scheduled? (Is a booking agent used? Do

you schedule your own performances, etc.?)

• Obtain copies of the performance schedule/calendar/itinerary for the

year under examination and copies of the engagement contracts, if

available.

• Do you usually perform for a fixed fee, or a "percent of the gate", or

some other method? Explain, in detail, how this works.

• Are you paid in cash, check, or some other method for performance?

• How do you account for the payments? (Is the money deposited? Is a

ledger maintained, etc?)

• Do you use any of the performance proceeds to pay any of your on-the-

road expenses?

• How are souvenir sales during live performances handled? (Do you

manage your own or do you contract it out?)

• Whom do you use to actually man the souvenir booths, and how are

they paid?

• Exactly how are proceeds from sales of souvenirs accounted for?

• Do you belong to any unions? Please provide the names.

G. Employment Tax Questions:

G.1. "Stars"

• How do you treat members of your band - as employees or independent

contractors?

• How do you treat members of your road crew (technicians, wardrobe,

assistants, drivers, etc.) - as employees or independent contractors?

• Who pays for traveling expenses of band members and road crews?

• Caution: Extensive questioning of the taxpayer regarding the

employment status of the recipients of Forms 1099-MISC and 1099-NEC

may trigger Section 530 relief under the Revenue Act of 1978. See Nelly

Home Care, Inc. v. United States, 185 F. Supp. 3d 653 (E.D. Pa. 2016).

Consultation with an Employment Tax Specialist is recommended. Also,

refer to Chapter 17 of this guide, Employment Tax, for more information

on employment taxes.

G.2. "Band Members, Road Crew"

• When hired to perform in a band, how are you classified by people you

are working for - employee or independent contractor? What is your

understanding of the reason for this treatment?

• Do you pay your own travel expenses when "on the road"? Are you

reimbursed or given any allowance for these expenses? Are you eligible

for reimbursement?

XIV. Producers

(1) Producers are the individuals that bring the musicians, engineers, arrangers,

and crews together for a recording. The producer also draws up contracts and

budgets and presents them to the record company for approval.

(2) Music producers usually do the following:

• Act as talent scout for new artists.

• Choose the appropriate musical material.

• Select and oversee arrangers, engineers, studios, and musicians.

• Control costs and budgets.

• Assure delivery of a recording.

(3) Producers are usually paid fees in two installments, first half prior to a

production and second half upon completion of a production. Contracts, if

available, between the producer and music company should be reviewed to

verify income.

(4) Producers may also receive royalties on recordings they produce. These

royalties generally are a percent (3 percent to 5 percent) of record sales after

the music company has recovered all its cost in making the recording and

royalties have been paid to the artists. Forms 1099 are not always issued to the

producers; therefore, you must inspect all contracts and reconcile to any Form

1099.

(5) If a producer has a client that is well known the producer usually does not incur

any of the expenses of a production. These contracts call for a detailed budget,

with the recording company incurring all expenses including reimbursement to

the producer for any of the producers out of pocket expenses. Inspect all

contracts to verify who is responsible for costs over budget and who receives

benefit for coming in under budget. A producer can be held responsible for

costs over budget unless the recording company approves the excess costs.

(6) Music video productions are generally contractual arrangements. Some

productions are done for a flat fee making all costs the responsibility of the

producer. If the production is done for an individual rather than a record

company the artist usually retains the rights to the video.

(7) Many videos and music recordings are produced using free-lancers as backup,

technical crews or musicians. Free-lancers are nonunion. Look for Form 1099

sent to the free-lancers. Consider employment tax issues and consult with an

Employment Tax Specialist when warranted.

(8) Custom sessions are situations where an unknown artist has a master

recording produced. At this point there is no recording contract with a record

company. The producer would receive a flat fee for production.

(9) Some productions, mainly "events" (for example, conference) are produced on

a cost plus basis. The main customers or clients in these situations are

corporations needing a special event video.

(10) There are several different kinds of compensation arrangements in the industry.

Be sure to request and review all contracts. Some producers may own their

own studio. There may be additional income from studio rental. There may also

be additional income for arranging for engineers, back up musicians, etc.

(11) Watch for label deals and pressing and distribution deals known as "profit

participation deals." On label deals the producer may receive royalties for the

producers' trade name and label to appear on the record. The producer may

also have a profit participation deal where they actually press the recording and

arrange for distribution rather than receive royalties, for example, sell the

recordings to the music company/distributor for a wholesale price less

distribution fees (between 18% -25%; less if it is a well-known artist). Potential

sources of income for producers:

• Recordings - royalties

• Talent scout activities

• Label deals - royalties

• Pressing and distribution deals - profit participation

• Studio rental

• Demo sessions

A. Recordkeeping

(1) Records that should be available:

• Contracts

• Budgets

• Disbursements journals

• Royalty statements

• Ledgers

• Bank statements, etc.

(2) The larger producers should have all the above and more. Small independent

producers may have no books and records. You may have to resort to indirect

methods to verify income. Forms 1099, Forms W-2, and third-party statements

may be the only records of income.

B. Examination Plan

(1) In preplanning producer examinations, make sure contracts are requested up

front along with royalty agreements and royalty statements. Budgets should be

requested along with comparisons of actual expenses and budgeted expenses.

(2) The initial interview questions are crucial in determining the sources of income

of the producers. Include in your questions some comments regarding how the

income is generated and recorded especially regarding royalties.

(3) Check the union membership directories for membership in musicians' and

writers' unions. Producers can be involved in producing, writing, performing, etc.

(4) In preplanning expenses, make note to scan all contracts to see who is

responsible for any costs over budget or who benefits if a production comes in

under budget.

C. Audit Issues

C.1. Gross Income

(1) Pay particular attention to royalty agreements, for example, percentages,

method of payment, and timing of payments. Look for the terms of the contracts

between producer and clients to see who is responsible for cost being over or

under budget and who receives any excess budget not used. Determine if the

producer has the opportunity for other types of income, such as, studio rental,

talent scouting, writing, etc. Question the producer about any label deals,

pressing and distribution deals, agreements with other producers on joint

production arrangements.

(2) Watch for reimbursements to producers from record companies for out-of-

pocket expenses. Some producers are involved in "custom sessions" where

unknown artists pay the producer a set fee for producing a master recording for

the artist. All production expenses are borne by the producer. Any royalties on

these artists will be at a lower percentage because the artists are unknown.

These sessions are often done on a "cash" basis. Studio rental expenses

should be matched with income as part of income verification.

C.2. Expenses

(1) The examination of the area depends on the contract arrangement between a

producer and a record company. Determine who is responsible for expenses,

over budget costs, and incidental costs. Determine if any of the expenses borne

by the producers are reimbursed to the producers. Determine if any "custom"

sessions are done.

(2) Watch certain promotional type expenditures made by producers for the benefit

to the artist. Past examinations have shown that some producers will purchase

expensive gifts, such as autos, for artists as incentives or for "promotional"

reasons without observation of the $25 gift limitation (watch for the "Promotion"

deduction). These items should be questioned as to whether they are ordinary

and necessary business expenses to the producer.

C.3. Travel and entertainment expenses

(1) An evaluation should be made as to how an amount was paid and what

documentation is available.

C.4. Capital expenses

(1) Costs incurred to produce masters should be capitalized. The income forecast

method may be required to amortize record masters unless the 3-year safe

harbor alternative can be used. The safe harbor allows

depreciation/amortization of costs at 50 percent in the first year, 25 percent in

the next two years.

(2) Demonstration recordings are handled differently. Costs to produce demo

recordings are not capitalized and depreciated. Taxpayers can make a choice

to either fully deduct the costs in the year expended or to make an allowance

for research and experimental expenses that is similar to depreciation. This

allowance, used for assets that have no determinable useful life, spreads the

expense of the demo record over a period of 60 or more months.

C.5. Employment taxes

(1) Producers arrange for engineers, musicians, arrangers, back-up vocalists, etc.,

when producing a recording. Some producers have these individuals on staff

while others use union members or free-lancers. Examiners should observe

local procedures before asking specific questions on any contract or verbal

agreement the producer has with engineers, musicians, etc., to determine the

control the producer has over these individuals.

(2) Remember, in raising the issue of employee versus independent contractors, a

safe haven may be created for the taxpayer if the taxpayer meets all of the

criteria of Section 530 of the Revenue Act of 1978, if the worker is not

reclassified as an employee. Refer to Chapter 17, Employment Tax, for more

information on employment taxes.

C.6. Royalties

(1) Another issue examiners should consider is the handling of royalties received.

Royalties received are subject to self-employment tax if received by the creator

of a work or by the person who earned them. Past examinations have shown

that taxpayers have placed these royalties on Schedule E or included them on

the face of the Forms 1040. Watch for instances where royalties are placed on

the returns to make sure applicable self-employment taxes are collected. For

further discussion refer to Chapter 3, Income Issues.

C.7. Related returns

(1) Many producers are engaged in other areas of the music business, for

example, song writing, publishing, and performing. These producers could have

separate entities set up for their other activities. For example, a producer's

production activities could be in corporate form while his song writing could be a

Schedule C business. Always ask about any other related party activities,

related businesses, or ventures. Ask to see the tax returns to determine any

related issues.

C.8. Use of specialists

(1) Be aware that the music industry is a complex industry. If valuation issues.

Employee/independent contractor issues, or international issues are present,

contact an engineer, employment tax specialist, or international specialist for

assistance.

D. Producers Questionnaire

(1) Not all inclusive:

• Do you have your own studio, engineers, arrangers, etc.? If not, whom

do you use in your recordings - free-lancers or union members? If free-

lancers are used, how are they paid (by union scale or some lesser

scale; cash or check)? How do you find your studio, engineers,

arrangers, etc.?

• For which artists have you produced? What kind of producing and other

services did you perform for them (music recording, demo, etc.)? For

which artists have you produced or provided other services during the

current year?

• Are you involved in any talent scout activities?

• With which recording companies do you have contracts? Which artists

are contracted with which recording companies? How are excess costs

over budget handled? Are the excess costs the producer's

responsibility?

• Are you involved in any label "deals"? If so, do you have fixed and/or

royalty compensation from the record company?

• Are you involved in any pressing and distribution deals (profit

participation deals)?

• What percentage of royalty do you normally receive from a recording

company? Do you receive a higher percentage from a major artist?

• Do the record companies provide a stated recording fund for each

production or do you use a predetermined budget?

• Are advance royalties ever paid to you or the artist? Is there a set scale

for these advances? Are the advances recoupable from producer

royalties?

• Do you give a "producer guarantee" (to pay excess cost over recording

fund)?

• How do you handle "demo" production costs?

• Do you participate in "custom" sessions? If so, whom do you use to back

up the artist, - free-lancers or union members? Are the freelancers paid

union scale? If not, why?

• Do you have renewal contract options with recording companies?

• Who gets the excess recording fund, if any, after the production is

complete?

• Do you control the music publishing rights on original recorded material?

D.1. Employment Tax Questions

• When producing or recording, what is the arrangement? Does the

recording company pay a flat fee for a finished product or are you hired

to produce a product and paid a salary for your services?

• If paid a flat fee, what is your arrangement with musicians and

performers hired to make a record? Are they paid by the hour, day, or a

flat rate?

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• Are these musicians and performers treated as employees or

independent contractors?

• If you are paid a salary for your services, do you act as an agent for the

recording company for the purposes of hiring musicians and performers?

• If acting as an agent for a recording company, how are musicians and

performers hired for recording treated - employees or independent

contractors?

• What is your source for obtaining musicians and performers used to

produce records? (local unions, word of mouth, etc.)

• Caution: Extensive questioning of the taxpayer regarding the

employment status of the recipients of Forms 1099-MISC and 1099-NEC

may trigger Section 530 relief under the Revenue Act of 1978. See Nelly

Home Care, Inc. v. United States, 185 F. Supp. 3d 653 (E.D. Pa. 2016).

Consultation with an Employment Tax Specialist is recommended. Also,

refer to Chapter 17, Employment Tax, for more information on

employment taxes.

XV. Managers

(1) The classification of "management activities" includes a wide variety of

occupations. For the purposes of this guide, the discussion is being limited to

the occupations which were found to be most prevalent in the industry: booking

agent, business manager, road manager, and personal manager.

(2) A booking agent finds or receives offers of employment for their clients and

negotiates a contract. A booking agent is compensated by a commission, which

is normally 10 to 15 percent of the gross contract. The rate depends on the

particular talent union involved and the duration of the engagement negotiated.

The commission usually applies for the life of the contract and any renewals.

Booking agents are independent contractors and the entertainers are their

clients. Large booking agencies may have thousands of clients.

(3) A booking agent obtains clients in multiple ways. These include representing

someone he or she knows, auditions, contests, offer services to new talent or

talent approaches the agent.

(4) It is the usual practice of recognized, successful artists to employ a business

manager. This person will often be an accountant or a tax attorney who will

manage the taxpayer's business, personal and investment accounts and keep a

close watch over the tax consequences of the artist's affairs. Fees for these

services range from 2 to 6 percent of the gross receipts handled, unless a

monthly or annual flat fee is arranged. Business managers are independent

contractors and not employees of the artists. Business managers usually

maintain books and records of the artists and often represent the taxpayer

during the examination.

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(5) A road manager is usually engaged by the personal manager or business

manager to travel with an artist. It is the road manager's responsibility to handle

the numerous business matters "on the road" such as transportation, hotels,

collections, as well as stage, sound, and lighting needs. A road manager can be

an employee or an independent contractor.

(6) Personal managers give advice and counsel to artists in the following areas:

• The selection of literary, artistic, and musical materials.

• Any and all matters relating to publicity, public relations, and advertising.

• The adoption of the proper format for the best presentation of the artists'

talents.

• The selection of booking agents to procure maximum employment for

the artists.

• The types of employment which the artists should accept and which

would prove most beneficial to their careers.

• The selection and supervision of accountants and attorneys other than

those used by the business manager.

(7) Personal managers are usually independent contractors and not employees of

the artist. However, consideration should be given to the common law factors of

Treas. Reg. §3121(d)-1(c)(2) when facts indicate the personal manager may be

an employee, not an independent contractor. See Chapter 17, Employment

Taxes, for additional information. A personal manager can receive 10 % to 15%

of the artist's gross receipts.

A. Recordkeeping

(1) The managers previously discussed are often much more business-minded

than others in the music industry. Therefore, they are more knowledgeable of

the recordkeeping requirements.

B. Examination Plan

(1) The single most important consideration when planning the examination of a

manager in the music industry is to design a plan to determine the manager's

relationship to the entertainer(s). To successfully examine a manager, you must

first know exactly what they do, who pays them, and how the payment is

computed. An initial interview questionnaire developed for the audit of a

manager should be used as a starting point and expanded as warranted.

(2) Early in the examination of the manager, it is essential that the specific duties of

a taxpayer be determined. It is also vital that the means in which the taxpayer is

paid and his or her relationship to the entertainer be established. This can best

be achieved in the initial interview. Follow-up questions may be asked on

document requests.

C. Audit Issues

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C.1. Gross Income

(1) Most managers receive Form W-2 as employees, or Forms 1099-MISC or

1099-NEC as contract laborers. IRP transcripts should be utilized. Comparison

of the Forms W-2 and/or Forms 1099 with the taxpayer's testimony as to his or

her activities may indicate that very little additional testing of income is

warranted. Of course, other means of verifying income may be deemed

necessary and should be employed as warranted such as review of client

contracts, etc.

C.2. Expenses

(1) Business expenses should be tested to ensure that the managers are not being

reimbursed by the entertainer for any out-of-pocket expenses. It is a common

practice for managers to be reimbursed by the entertainers for any out-of-

pocket expenses. Expenses should be reviewed for items that are capital in

nature. Reimbursements can be recorded as income or a credit to an expense

account.

C.3. Employment Taxes

(1) Compliance in the area of employment taxes is generally at an acceptable level.

Refer to Chapter 17, Employment Tax, for more information.

C.4. Related Returns

(1) Frequently an examiner will find it necessary to pick up related returns of

taxpayers in the music industry due to the close working relationships between

taxpayers within the industry. When examining a taxpayer in the music industry,

an examiner should be alert to any information which may indicate potential

adjustments on a related return.

D. Management Questionnaire

(1) Not all inclusive:

• Explain in detail your management responsibilities.

• For whom do you perform these duties?

• Are you an employee of the artist or do you work as an independent

contractor?

• How are you paid for your services? (cash, regular paycheck, by the job,

commission, etc.)

• What contractual agreements have you entered into as part of your job?

Provide copies.

• What expenses do you incur in performing your job? Are you reimbursed

for any of these expenses by anyone else or any other entity? How do

you record the reimbursements (income or offset to expenses)?

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• How many clients do you have?

XVI. Videos

(1) In the late 1980's, music videos became a major part of the music industry. A

music video is usually released along with the release of a new recording. A

music video is a short visualization of the artist and his or her music. The music

videos have been a significant influence in the marketing and sales of music

recordings.

(2) Music videos are contractual in nature regarding exclusive rights to exploitation

and royalty percentages. Income is derived from commercial network TV, cable

TV, local TV, clubs, and jukeboxes sales. Some recording companies now offer

package deals to an artist to produce his or her recordings as well as the videos

to accompany and enhance the recordings. Video rights are major issues in

contract negotiations. The rights to the exploitation of the videos and the

financing of the videos are negotiation points.

(3) Most of the time a contract between a recording company and an artist is

considered an employment contract for purposes of the Copyright Act. This

does not necessarily mean that the artist is an employee of the recording

company for employment tax purposes. The contract and the relationship

between the recording company and the artist should be evaluated to determine

if an employer-employee relationship exists. (Local procedures should be

observed for making employment tax referrals.)

(4) Under many of the contracts between an artist and a recording company, the

recording company will advance the costs of the video production. Costs to

produce a video range from $15,000 to $150,000. However, most costs are

below $100,000 unless the artist is a big name artist. Recoupment of these

costs depend on whether the video is produced for promotional or commercial

reasons. The contract should specify if the video is promotional or commercial.

The recoupment will directly affect the compensation to producer and artist.

(5) Video producers may also be the music producer or they can only produce

videos. Video producers may also be involved in corporate and/or promotional

video productions and can be negotiated as a cost-plus contract. Video

producers who only produce videos generally charge a flat fee to a recording

company or artist.

A. Recordkeeping

(1) As with music producers, video producers enter into a contract to produce

music videos. Often, the video production agreement will be embodied in the

music production agreement. Royalty statements should be available and easily

matched to contract agreements.

(2) Many of the smaller producers keep no formal set of books. At times you may

have only bank statements and canceled checks. Pay particular attention to the

contracts and agreements. In reading the contracts, note who is responsible for

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costs over budgets (if budgets are used) and who receives any excess budget

over costs. If flat fees are charged, note who is responsible for any excess

costs or if incidental costs are reimbursed.

B. Examination Plan

(1) Requests for contracts should be noted in your examination plan along with

budgets and royalty statements.

(2) The initial interview questions should be tailored to identify all potential sources

of income and different types of videos produced and the compensation

arrangements.

(3) Make sure you plan to ask specific questions about cost and budget

arrangements and/or any reimbursement agreements.

(4) In addition to the standard items requested in the initial IDR, all contracts,

royalty statements and/or agreements should be requested.

C. Audit Issues

(1) Gross Income - Again, the contracts are a key element in determining income

based on the arrangement of the parties. Contracts will normally include fee

arrangement, excess cost agreements, reimbursement, cost under budget

agreements, and incidental cost agreements.

(2) Determine if the producer is involved in other activities such as equipment or

studio rental, promotion activities, etc. Watch for related entities set up to do

other business ventures; for example, video productions as a corporation and

song writing as a Schedule C.

(3) Expenses - The examination of this area depends on the contract arrangement

between video producer and artist and/or recording company. Determine who is

responsible for the expenses of production and incidentals, just as under music

producers.

(4) Employment taxes - As in music producing, the video producer will arrange for

all backup personnel such as actors, cameramen, set directors, etc. involved in

a music video. By inquiring about the nature of the relationship between these

individuals and the producer, you can make a sound decision as to any

employment relationship. Refer to the section on employment tax for more

information on employment status.

(5) Related returns - Always ask about any related party activities, related

businesses or ventures. Ask to see the related tax returns to determine any

related issues.

(6) Specialists - Examiners should always consider use of a specialist when

appropriate in an examination. Use of an international examiner should be

considered whenever income from foreign sources is received and seems

questionable. Use of an employment tax specialist should be considered where

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the proper classification of a worker providing services to the taxpayer is at

issue.

D. Videos Questionnaire

(1) Not all inclusive:

• Is a video produced with each new recording? How is it determined

when and for which recording that a video is produced?

• Do you have agreements with any companies for exclusive rights to your

videos? If so, for how long?

• Do you have rights from any artists? If so, who and what are the nature

of the agreements?

• Who is responsible for financing and producing the videos?

• Who has the copyright to the music videos?

• Are your music videos considered "work made for hire"?

• Who retains the exploitation rights on: home video sales, TV,

promotional use, third party broadcast licensing, nightclubs?

• Do you have any licensing agreements with music video library

agencies?

• Are you producing primarily promotional or commercial videos, or a

combination?

• Who bears the initial cost of producing a video? Is there a video

production fund or budget?

• How do you recoup your video production costs? (Artist record royalties,

video receipts, etc.)

• How are royalties handled regarding a video production?

• How are the videos distributed? Who is responsible for the distribution?

D.1. Employment Tax Questions

(1) If you ask these questions, you may be considered to have started an

employment tax examination and local procedures, such as issuing the required

employment tax examination publication 1976 and Letters 3850 or 3851, should

be observed. Consultation with an Employment Tax Specialist is

recommended.

• When hiring performers and technicians, how are they classified –

employees or independent contractors?

• How are performers and technicians obtained - union or word of mouth,

etc.?

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• If traveling expenses are incurred by the performers and technicians,

who pays the expenses?

• Are you paid for a finished product or does the client have input and

control over the process of making the video, for example, approval of

people hired, rate of pay for performers, technicians, etc.?

XVII. Employment Tax

(1) Many taxpayers in the entertainment industry make payments in the course of

their business for services performed by others. It is necessary to determine

whether the service provider is an employee of the taxpayer or an independent

contractor. The first step is to find out what service was performed. If an actor

pays a publicist, there is usually no employer-employee relationship. If a

producer hires a secretary or an assistant, there is a greater probability of an

employer- employee relationship. The following is a brief outline of the law

regarding employment status and employment tax relief. It is important to note

that either worker classification--independent contractor or employee--can be a

valid and appropriate business choice. For an in-depth discussion, see the

training materials titled "Technical Basic Employment Tax New Hires (Student

Guide)" Training 34103-002 (06-2019) Catalog Number 67477V. Consultation

with an Employment Tax Specialist is recommended.

(2) Section 530 of the Revenue Act of 1978 (Section 530) was enacted by

Congress to provide businesses relief from federal employment tax obligations

if certain requirements are met. The first step in any case involving worker

classification is to determine whether the business is entitled to relief from

liability for employment taxes under Section 530 before pursuing the

employment status of the workers. It is not necessary for the business to claim

Section 530 relief for it to be applicable. To correctly determine the tax liability,

examiners must explore the applicability of Section 530 even if the business

does not raise the issue. Publication 1976, Do you Qualify for Relief under

Section 530?, must be provided to the taxpayer at the beginning of any

examination involving worker classification. If the requirements of Section 530

are met, a business may be entitled to relief from federal employment tax

obligations. Section 530 terminates the business' employment tax liability and

any interest or penalties attributable to the liability for employment taxes.

Section 530 does not impact the worker's own individual employment tax

liability.

(3) In order to qualify for Section 530 relief, the business must meet the reporting

consistency, substantive consistency and reasonable basis tests.

(4) The reporting consistency test requires that: 1) the business timely filed all

required information returns consistent with the treatment of the worker as a

non-employee (for example, Form 1099-MISC for payments to independent

contractors prior to 2020 or Form 1099-NEC for payments made in 2020 and

beyond to independent contractors) for the period(s).

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(5) The substantive consistency test requires that the business treated all workers

in substantially similar positions in the same manner as not being employees.

(6) Under the reasonable basis test, the business must have had some reasonable

basis for not treating the worker as an employee. A taxpayer will be treated as

having a reasonable basis for not treating a worker as an employee if the

treatment was in reasonable reliance on one of three safe havens: 1) judicial

precedent, published rulings, technical advice with respect to the taxpayer, or a

letter ruling to the taxpayer; 2) a past Internal Revenue Service audit of the

taxpayer in which there was no assessment attributable to the treatment (for

employment tax purposes) of the individuals holding positions substantially

similar to the position held by this individual; or 3) a long-standing recognized

practice of a significant segment of the industry in which the taxpayer was

engaged. A business that fails to meet any of these three safe havens may still

be entitled to relief if it can demonstrate that it relied on some other reasonable

basis for not treating a worker as an employee.

(7) Guides for determining a worker's employment status are found in three

substantially similar sections of the Treasury Regulations; namely, sections

31.3121(d)-1, 31.3306(i)-1, and 31.3401(c)-1, relating to the Federal Insurance

Contributions Act (FICA), the Federal Unemployment Tax Act (FUTA), and

federal income tax withholding (FITW), respectively.

(8) The regulations provide, generally, that the relationship of employer and

employee exists when the person for whom the services are performed has the

right to control and direct the individual who performs the services not only as to

the result to be accomplished by the work but also as to the details and means

by which that result is accomplished. The control must be present but does not

need to actually be exercised. The examiner will need to weigh the facts and

circumstances of each case and determine worker status accordingly.

(9) The training materials mentioned above provide more information on the

method of analysis used in determining employment status. They explain the

kinds of facts to be considered, including those evidencing behavioral control,

those evidencing financial control, and those evidencing the relationship of the

parties.

A. Employees – Household Employees

(1) Many taxpayers in the entertainment industry employ the services of household

employees for either personal reasons or to maintain an image. This is a

personal expense and not an allowable business deduction.

(2) A "household employee" is a worker who performs domestic services. Domestic

services are services of a household nature performed by an employee in or

about a private home of the employer. A private home is a fixed place of abode

of an individual or family. A separate and distinct dwelling unit maintained by an

individual in an apartment, hotel, or other similar establishment may constitute a

private home. See Treas. Reg. § 31.3121(a)(7)-1(a)(2). Domestic services

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include services performed in or about a private home by workers such as

cooks, housekeepers, babysitters, caretakers, handymen, gardeners, and

chauffeurs. See Treas. Reg. § 31.3121(a)(7)-1(a)(2).

(3) Wages paid to household employees may be subject to employment taxes.

Different rules are applicable for whether the wages are subject to Federal

Insurance Contributions Act (FICA), Federal Unemployment Tax Act (FUTA), or

federal income tax withholding (FITW).

(4) If the employer pays an employee an amount equal to or in excess of the

applicable dollar threshold in any calendar year for domestic services, all cash

payments made by the employer to the employee in that year are wages

subject to FICA. See IRC § 3121(a)(7)(B).

(5) As of calendar year 2014, an employer must pay FICA tax if the employer paid

$1,900 or more for the year to any one employee. Cash wages in excess of

$1,900 are not subject to FICA tax if paid to the household employer's spouse,

child under 21, parent, or any employee under 18.

(6) There is an exception to the exclusion of wages paid to the parent of the

employer and paid to a household employee under the age of 18.

(7) The employer must pay FUTA tax if total wages paid are $1,000 or more in any

calendar quarter during the year or during the previous year, to all household

employees. Cash wages for household employment paid to the employer's

spouse, child under the age of 21 or parent are not counted toward the $1,000

threshold and are not subject to FUTA. See IRC § 3306(c)(5).

(8) The employer owes FUTA on the first $7,000 paid in a year to each employee.

(9) Employment taxes for domestic service employees are paid and reporting

annually on Schedule H, Household Employment Taxes and flow right to the

1040. The amounts calculated are the full rate. It is up to the employer to

withhold the employee portion. The employer must also have an EIN, provide a

W-2 to the employee, and send a copy of the W-2 to the SSA (or the employee

won't get credit as their information is not entered on the Schedule H; this is

different from SE tax which flows to the SSA right from the 1040). A Schedule H

can be filed separately if the taxpayer is not required to file an income tax

return. A separately filed Schedule H carries its own assessment statute date

that is not based on the filing requirements of the taxpayer's Form 1040.

XVIII. Overview of Common Issues in the Entertainment Industry

(1) For taxpayers in the entertainment industry, there are three general areas of

activity that are likely to have tax consequences: performing for compensation,

searching for work, and maintaining their skills, status, or image.

A. Performing for Compensation - Income Issues

(1) During the background interview, it is important to get a clear idea of the extent

of the taxpayer's employment in the entertainment industry during the taxable

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year in issue. Use Forms W-2 and 1099, as well as information from the

taxpayer (diaries, travel logs, etc.) and third-party sources when necessary.

A.1. Trade or Business vs. Hobby

(1) Not everyone who wants to be employed in the entertainment industry is able to

support him or herself by doing so. If the taxpayer had a source of income

outside the entertainment industry during the year or claimed expenses

disproportionate to his or her entertainment income, any loss from the

entertainment activity may be an IRC §183 (hobby loss) issue. See Dreicer v.

Commissioner, 78 T.C. 642 (1982).

A.2. Facts and Circumstances Test

(1) Can the taxpayer show that his or her entertainment activities were really profit

motivated? For example, devotion of sufficient time, money, energy?

Businesslike approach? Good recordkeeping?

A.3. IRC § 183 Limits Deductions

(1) Where IRC § 183 applies, all of the income is recognizable, but the deductions

are limited to that income.

A.4. Case Law Intensely Factual

(1) For example, Grommers v. Commissioner, T.C. Memo 1992-343 (taxpayer's

"dabbling" in art and antiques was not a profit-motivated activity, where she had

substantial other income, maintained a luxurious lifestyle traveling, visiting

European auction houses, etc., and consistently operated the "business" at a

loss); Cf. Krebs v. Commissioner, T.C. Memo. 1992-154 (wife of theatrical

promoter was entitled to deduct expenses of pursuing her singing career, where

she had musical expertise, hired professional help, devoted substantial time,

effort, money, etc.); see also Lesher v. Commissioner, T.C. Memo 1991-162

(Court rejected taxpayer's claims to be a travel writer, where she was employed

full-time as a computer programmer and never submitted anything for

publication); Rodgers v. Commissioner, T.C. Memo. 1979-128 (Spouses' only

source of income was husband's sheet metal trade, but both spouses employed

in other occupations claimed to be entertainers; Court found only the husband

was actually in the trade or business of being an entertainer.)

(2) It should be noted that there is substantial case law addressing hobby/business:

Many of the cases cite Treas. Reg. § 1.183-2(b) and often reference Dreicer.

B. Employee vs. Independent Contractor

(1) This appears to be a major problem in the entertainment industry. Please check

with the local procedures before initiating any employment tax issue.

Consultation with an Employment Tax Specialist prior to discussing the issue

with the taxpayer is recommended.

B.1. Significance of the Issue

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(1) Worker classification is highly contested for a number of reasons.

B.2. For the Employer

(1) Treating a worker as a non-employee/independent contractor means:

• An employer will not be required to withhold, deposit or report

state/Federal income tax withholding, FICA/FUTA, unemployment taxes,

etc. Additionally, benefits normally provided only to workers who are

treated as employees (for example, pension plan, and health insurance)

will not be provided.

• On the other hand, the consequences of misclassification can be huge: a

taxpayer can be liable for FICA, FUTA and income tax withholding on

wage payments for any open year, employee plan adjustments,

penalties and interest, along with non-IRS issues such as tort liabilities.

B.3. For the Worker

(1) Independent contractor status means:

• The taxpayer can report on a Schedule C, thereby increasing available

deductions (for example, can fully deduct agent's 10 percent), etc.

• The taxpayer also must file and pay estimated tax, self-employment tax.

• Independent contractor status means no employee benefits,

unemployment, etc.

B.4. Statutory Classification

(1) The Internal Revenue Code provides clear rules for some occupations, for

example, corporate officers who perform more than minor services and receive

remuneration for such services are considered employees, IRC §§ 3121(d)(1),

3306(i), and 3401(c); workers who meet the definition of a "direct seller" are

properly classified independent contractors, IRC § 3508.

(2) IRC § 3121 defines employees for FICA as: corporate officers, common law

employees, and "statutory employees" (agent drivers, full-time insurance

salesmen, home workers, and traveling salesmen).

(3) IRC § 3306(i) applies the same rules for FUTA by referencing section 3121(d)

but excludes full-time life insurance salesmen and home workers. IRC §

3401(c) covers withholding. IRC § 3508 covers direct sellers and qualified real

estate agents.

B.5. Common Law Analysis

(1) Generally, the determination of worker status depends on common law.

(2) Categories used to determine worker classification (based on facts and

circumstances of each particular case).

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• Behavioral Control - The right to direct or control the details and means

by which the worker performs the required services.

• Financial Control - The right to direct or control the economic aspects of

the worker's activities.

• Relationship of the Parties - How the parties perceive their business

relationship.

B.6. Employee Status is the Norm

(1) Major studios and many other employers in the entertainment field, preferring

not to risk the disastrous consequences of misclassification, treat almost

everyone on the payroll as employees.

(2) In Office Audit - Use Forms W-2 in analysis, matching income sources and

amounts with any non-reimbursed employee expenses claimed. Be sure all

non-union employers have complied with payroll rules.

• Where Schedule C Is Not Allowed - Some performers simply use a

Schedule C even though their income was Form W-2; this must be

corrected. Erroneous reporting of wage income and unreimbursed

expenses on Schedule C has become more prevalent with the

enactment of the Tax Cuts and Jobs Act which eliminated Schedule A

miscellaneous itemized deduction for unreimbursed employee business

expenses for tax years 2018 through 2025.

• Mixed Income Sources - Where the taxpayer has both Form W-2 and

Form 1099 income, there should be an allocation between Schedule C

and Schedule A on how the expenses are deducted - depending on how

they match up with the jobs. Note that for tax years 2018 through 2025,

the Tax Cuts and Jobs Act eliminated Schedule A miscellaneous

itemized deductions for unreimbursed employee business expenses.

• "Qualified Performing Artist" - Certain low-income entertainers are

permitted to deduct their expenses "above the line," that is, for purposes

of arriving at AGI. IRC § 62(a)(2)(B).

B.7. Application of Facts and Law

(1) Every individual case turns on its own facts. For example:

(2) Barnaba Photographs Corp. v. United States, United States District Court for

the Southern District of New York, entered June 28, 1949, aff'd per curiam, 178

F.2d 402 (2d Cir. 1949); Rev. Rul. 71-144, 1971-1 C.B. 285. Photographers'

models who worked through booking agents, had no continuing relationship

with any particular photographer, charged hourly rates, typically furnished their

own make-up and wardrobe, and "used their own initiative, ability, and

experience in interpreting the roles assigned to them," were not employees of

the photographers, despite taking directions, etc., from them.

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(3) Rev. Rul. 74-332, 1974-2 C.B. 327. Models that performed services under the

agency's name, were not permitted to do free-lance modeling, were graduates

of the agency's modeling school, and in general functioned only through the

agency, were employees of the agency. Rev. Rul. 68-107, 1968-1 C.B. 427. As

circumstances varied, orchestra members could be considered either

employees of the nightclub operator, employees of the orchestral leader, or

"partners" on a "cooperative" basis.

(4) Rev. Rul. 57-155, 1955-2 C.B. 333. An actor or actress who provided his or her

own costume, delivered a few lines from a script, and took technical instructions

from the producer was considered an employee; a narrator who took technical

instruction from the producer and advice from the client was also an employee.

An artist, who took only suggestions, who supplied his or her own materials and

performed his or her work at home, etc., was independent.

(5) Rev. Rul. 68-644, 1968-2 C.B. 468. Newspaper correspondents, over whose

work hours the newspaper had no control, and who furnished weekly news

items to the paper which the paper could accept and pay for or reject, were not

employees of the paper.

(6) Rev. Rul. 74-412, 1974-2 C.B. 332. A professional architect, working on a

project-by-project basis for an architectural firm, on the firm's premises,

furnished with office, desk, secretary, etc., paid according to time and difficulty

of assignment, subject to the firm's supervision, was an employee of the firm.

C. Personal Service ("Loan Out") Corporations (PSC)

(1) Those in the entertainment industry will often form corporations to conduct their

business. These corporations are usually solely owned by the person who is

providing the services generating the majority of the gross receipts. There are

many benefits to forming these corporations including the availability of

deductions that are limited to the self-employed taxpayer such as medical

insurance, pension deductions, etc. There have been cases among entertainers

and others in the industry toward unjustified use of the corporate device to

obtain the benefits of deductions and shelters that would otherwise not be

available.

C.1. Background

(1) There is a large body of case law on this subject, motivated by evolving tax

principles over the years. See e.g., Borge v. Commissioner, 405 F.2d 673 (2d

Cir. 1963) cert denied 395 U.S. 933 (1969); Keller v. United States, 77 T.C.

1014 (1981), aff'd, 723 F. 2d 58 (10th Cir. 1983); Foglesong v. United States,

691 F. 2d 848 (7th Cir. 1982).

C.2. Applicable Law

(1) At the present time, some of the controlling law to consider in this area may be

found in the following authorities.

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(2) IRC § 482 - This statute authorizes the Government to re-allocate gross income

in order to clearly reflect income among commonly-controlled taxpayers (See

Foglesong).

(3) IRC § 269A - If a PSC was formed principally to avoid or evade tax, and if the

corporation performed services for only one other entity, the IRS is authorized

to reallocate income to the artist/shareholder.

(4) Rev. Rul. 74-330, 1974-2 C.B. 278, Rev. Rul. 74-331, 1974-2 C.B. 281 - The

"lend-a-star" rulings deal with off-shore personal service corporations owned by

non-U.S. performers.

(5) Common law factors - The employee versus independent contractor factual

analysis is appropriate for personal service corporations in order to determine

whether the performer was an employee of his or her corporation or of the

producer directly.

(6) Sargent v. Commissioner, 929 F. 2d 1252 (8th Cir. 1991); Nonacq., A.O.D.,

1991-022 (October 22, 1991) - The Tax Court held that the hockey teams had

paid the players directly and the players' PSCs thus should be ignored, based

on assignment of income doctrine and IRC § 482. T Sargent v. Commissioner,

93 T.C. 572 (1989). The Eighth Circuit reversed in Sargent v. Commissioner,

929 F.2d 1252 (8th Cir. 1991), holding the players were employees of their

PSCs. IRS has announced non-acquiescence in the appellate decision; A.O.D.

1991-022. Outside the Eighth Circuit we will follow the Tax Court.

(7) Statutory requirements - The PSC must comply with all withholding, reporting,

and payment rules with respect to the wages it pays the performer.

D. Residuals, Royalties, Other Income

(1) Income may be received by entertainers in many different forms.

D.1. Residuals

(1) Periodic payments received by actors and actresses and others for reruns of

commercials, episodic television, etc.

• Payor may be a film studio, or one of a few payroll services who do that

work.

• Agents' 10 percent commission is usually charged only where the

amount of the residuals is above union scale.

• Payors typically withhold, file Forms W-2. IRS should therefore have

adequate records for cross reference.

D.2. Royalties, License Fees

(1) Periodic payments received by copyright owners such as songwriters, recording

artists, authors, paid by those who perform, exhibit, run, or otherwise distribute

copyrighted works for a prescribed time period or purpose.

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(2) Sources of information - "Mechanicals" (royalties on music) are tracked by BMI,

ASCAP, and SESAC for the publishing copyright and SoundExchange for the

recording copyright.

(3) Other sources of information - Such as motion picture studios, television, book

publishers, are publicly available on-line.

D.3. Fringe Benefits, Goods for Services

(1) The frequency and variety of advertising and promotion deals in the

entertainment industry create many opportunities to pay employees in

something other than cash. These items may not always appear on the

recipients' Forms 1040, but they should. IRC § 83 (fair market value of property

received for services is includable in gross income).

(2) Perks - Performers sometimes receive wardrobe and other perquisites from

producers; for example, they might get to keep their costumes after a film, or

they might get a case of the sponsor's product after doing a commercial; an

established spokesperson for an automobile usually drives a new one each

year.

(3) Merchandise deals - Compensation in the broadcasting industry is frequently in

the form of merchandise, barter, etc.

(4) Passes - Employees of TV, movie studios, record companies, etc., may get free

passes to concerts, shows, and screenings.

D.4. Excessive Per Diem

(1) If an employer reimburses employee expenses, there must be an

"arrangement" requiring the employee to substantiate the expenses and/or

return the unsubstantiated portion; IRC § 274(d). Where there is no such

arrangement in effect, the unsubstantiated portion will be considered income to

the employee. IRC § 62(c); Treas. Reg. § 1.62-2(c)(5).

D.5. Miscellaneous

(1) Participations, endorsements, product tie-ins, prizes (for example, tractor-

pulling, rodeo), foreign source, etc. are all includible in gross receipts.

(2) Unemployment insurance: Entertainers are often eligible for unemployment

compensation between jobs. These payments are included in gross income.

IRC § 85.

(3) Buy-outs, releases: Creative individuals sometimes have agreements that pay

them when their ideas are not used - "pay-or-play" contracts; also, past

performances re-used in excepts, clips and "bloopers" may generate new fees,

talent releases, etc.

(4) Business Expenses: This is one of the areas most subject to both abuse and

genuine misunderstanding and/or differences of opinion. Even case law can be

contradictory.

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E. Fact: Most Expenses Are Reimbursed/Reimbursable by the

Employer

(1) It's likely that a union contract requires the producer to pay expenses directly or

reimburse workers for all expenses connected with the job.

E.1. No Deduction Without Proof

(1) Actors who claim they had to buy their own costume, pay their own travel, etc.,

for a production, should be able to show an employment contract or other

confirmation of this requirement.

(2) May not be deductible, even with proof - Even if a "costume" was required to be

provided by the taxpayer, it is not deductible as wardrobe unless it's unsuitable

for general use.

(3) Analyze the year's job history - Compare the taxpayer's notes of jobs worked

with expenses claimed; get dates worked, job requirements; question

thoroughly to make sure it all makes logical sense. See Kisicki v.

Commissioner, T.C. Memo. 1987-245 (taxpayer's calendars contained

discrepancies, alterations); Wilson v. Commissioner, T.C. Memo. 1973-92,

reversed on other grounds, 500 F. 2d 645 (2d Cir. 1974). (Taxpayers' expense

log didn't correspond to their known activities during the year.)

(4) Union/non-union - Where taxpayers claim they incurred unusual expenses

because they worked on non-union jobs, they must be able to prove it. Insist on

seeing contracts; if necessary, contact employers or unions to confirm.

(5) Reimbursement - No deduction is allowed for an expense if the taxpayer could

have received reimbursement but did not choose to claim it. Campbell v.

Commissioner, T.C. Memo. 1987-480.

E.2. Travel

(1) There is a deduction allowed for expenses incurred away from home, in pursuit

of a trade or business. IRC § 162(a)(2). However, as stated above, a production

company typically pays all travel expenses for cast and crew, either to or from a

local location or out of town. Consult the union or the guild contract.

E.3. Deduction controlled by IRC § 274

(1) Even where a deduction for meals, lodgings, etc., is proper, it is allowed only to

the extent the taxpayer presents thorough documentation, which means records

(preferably contemporaneous) or other corroboration of his or her statements.

Treas. Reg.§ 1.274-5T. Elements to be substantiated:

• Amount of each separate category of expenditure;

• Dates of departure and return;

• Destination(s);

• Business purpose, including business benefit expected.

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(2) Note: A contemporaneous log is not required, but the closer in time to the event

the record was created, the more probative value it has; conversely, if a

taxpayer has no log or diary, the need for independent corroborative evidence

is greater. Treas. Reg.§ 1.274-5T(c).

E.4. Away from Home

(1) Taxpayers in the entertainment industry may regularly work in more than one

city (for example, Los Angeles and New York City). Several issues may arise as

a result.

(2) Tax home - A taxpayer's home is normally the (one) city where his or her job is

performed. Rev. Ruls. 60-189, 1960-1 C.B. 60; Rev. Rul. 73-529, 1973-2 C.B.

37. Revenue Ruling 93-86 covers temporary v. indefinite abode. Rev. Rul. 93-

86, 1993-40 I.R.B. 4.

(3) Only one tax home - As a rule, a taxpayer can have only one tax home, even

when he or she has two widely separated ongoing places of business.

Duplicated expenses would therefore be deductible. Andrews v. Commissioner,

931 F.2d 132 (1st Cir. 1991).

• Limitations - However, there are limits; for example, frequent, short trips

home during the duration of the job would be a personal expense.

• Profit motive - Also, where the transportation costs are greater than the

income from the job, it raises doubts about profit motive.

(4) Several jobs during year - If the taxpayer works in two or more locations in one

tax year, the determination of which is his or her tax home is based on:

• Total time spent in each city;

• Degree of business activity in each area;

• Relative amount of income per area. See Markey v. Commissioner, 490

F.2d 1249, 1256, (6th Cir. 1974).

(5) No principal place of business - Where taxpayers' work is of such a nature that

they have no principal place of business their "regular place of abode" may be

deemed to be their tax home, provided:

• The taxpayer performs a portion of his or her work in the same area as

the abode, and lives there while doing so; and

• Living expenses in that abode continue while the taxpayer is necessarily

away on business; and

• The taxpayer has either: (a) not abandoned that abode, or (b) has family

members living there, or (c) uses that abode frequently himself or

herself. See Rev. Rul. 73-529, 1973-2 C.B. 37.

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(6) Itinerant; no tax home - If the taxpayer cannot meet at least two of the above

three criteria, he or she has no tax home and may not deduct travel expenses.

Rosenspan v. United States, 438 F.2d 905 (2d Cir. 1971).

(7) Travel may be multi-purpose - Where travel is for both business and pleasure

deductibility depends on which was primary. Treas. Reg.§ 1.162-2(b). For dual

purpose foreign travel, expenses may be allocated. Treas. Reg. § 1.274-4(f).

E.5. Local Travel

(1) Just as in any other line of work, commuting is not a deductible expense,

although there are several exceptions to this rule.

(2) General rule: commuting not deductible - The expense of commuting, though

absolutely necessary and ordinary to earning a living is not deductible. Treas.

Reg. § 1.162-2(e); Fausner v. Commissioner, 413 U.S. 838 (1973).

(3) More than one commute per day - Even where the taxpayer goes back and

forth from home more than once a day (as an actor might have to do), the

expense of the commute does not become deductible. See, e.g., O'Hare v.

Commissioner, 54 T.C. 874 (1970); Sheldon v. Commissioner, 50 T.C. 24

(1968).

(4) Exception: traveling between locations during the work day - Expenditures for

traveling between work sites within the work day are deductible. See Rev. Rul.

55-109, 1955-1 C.B. 261.

(5) Exception: home office - Where the taxpayer's home is his or her principal place

of business, travel to and from home would no longer be "commuting," and

could thus be deductible. See Curphey v. Commissioner, 73 T.C. 766, 777-78

(1980).

(6) Exception: commuting outside the metropolitan area – A free-lance worker who

normally works within the metropolitan area may deduct the commuting

expenses of going outside that area for a temporary job. Rev. Rul. 190, 1953-2

C.B. 303. See Harris v. Commissioner, T.C. Memo. 1980-56, aff'd and

remanded in an unpublished opinion 697 F.2d 898, 9th Cir. 1982.

(7) Where taxpayer had a choice - Producers often provide a bus for cast and crew

to nearby locations, but some may prefer to drive themselves. Where an

employer has made a benefit available to the taxpayer but the taxpayer prefers

to use his or her own, there is no deduction. Kessler v. Commissioner, T.C.

Memo. 1985-254 (FBI agent could not deduct cost of ammunition for required

target practice, where his employer had offered ammunition for that purpose).

F. Wardrobe, Make-Up, Etc.

(1) In most kinds of productions, a performer's costumes, wigs, make-up, and other

needs are supplied and paid for by the employer. (One possible exception

might be TV announcers or news reporters who wear their own wardrobe.)

F.1. Substantiation

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(1) If a taxpayer has deducted wardrobe, make-up, or any such personal items

used during performance, he or she should be able to prove the item was

actually required (that is, a copy of the employment contract), and that the

amount was actually spent (sales receipt).

F.2. Business Versus Personal

(1) The rule is that personal expenses are not deductible, even when they are

required as a condition of employment. IRC § 262.

(2) Clothing; other personal items - Clothes are ordinarily a personal expense.

Kennedy v. Commissioner, T.C. Memo. 1970-58, aff'd, 451 F. 2d 1023 (7th Cir.

1971). Haircuts and other grooming expenses are also personal, and thus not

deductible as a business expense, even if required by an employer. Drake v.

Commissioner, 52 T.C. 842, 844, (1969) (Haircuts are not deductible, though

required by job.) Hynes v. Commissioner, 74 T.C. 1266, 1291-1292 (1980)

(Grooming is an inherently personal expense and the cost is not deductible).

(3) Taxpayer must prove his or her primary motive – Taxpayers may not simply

allege their motives in making a questionable expenditure were business and

not personal, they must prove it by a showing of objective circumstances.

Wrightsman v. United States, 428 F.2d 1316 (Cl. Ct. 1970) (an art "investor"

could not prove his primary motive was not personal enjoyment of art).

F.3. Gratuities, Gifts, Etc.

(1) These items are no more (or less) deductible by taxpayers in the entertainment

industry than anyone else. The $25 limit on business gifts must be observed.

IRC § 274(b)

G. Education, Coaching, Special Training

(1) If the taxpayer can establish that he or she needed special training for a

particular job, it may be deductible. For example, a C&W singer got a role in a

commercial and needed to learn to ride a horse. (Although it would be more

likely for the producer to pay for special coaching.) If this issue comes up, get

specific details. The courts tend to consider if there is also a personal reason for

the lesson. The courts take into consideration as to how much they will advance

the taxpayer's business. For example, flight lessons are a common one, and

were disallowed for a CPA with a love of flying in Katz v. Commissioner, T.C.

Memo. 1968-16, but were allowed for a news photographer in Aaronson v.

Commissioner, T.C. Memo. 1970-178. Examiners should address if the lessons

qualified the taxpayer for new field, which would not be deductible. Treas. Reg.

§ 1.162-5(b) and (c). See, e.g., Roussel v. Commissioner, T.C. Memo. 1979-

125. For example if the singer was starting a side business doing something

with horses, the lessons would not necessarily be for her singing business.

H. Agents' and Managers' Fees

(1) Agents typically take 10 percent of gross receipts. Managers may take more;

ask to see contract, if available. (Further discussion below.)

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I. Searching for Work

(1) As stated earlier, those who work in the entertainment industry spend a lot of

time looking for their next job.

I.1. Promotional Materials, Resumes, Photographs, Etc.

(1) Actors and other entertainers need to advertise by means of ads, flyers, and

other printed materials distributed to potential employers.

I.2. IRC § 162 Deduction Is Probably Okay

(1) It is usually clear that these items fall within IRC § 162 definition of "ordinary

and necessary." E.g., Kisicki v. Commissioner, T.C. Memo. 1987-245 (actor

could deduct cost of photography, printing, demo tapes.)

I.3. Get Substantiation

(1) However, be sure to see bill, invoice from printer, statement from photographer,

canceled checks, etc. Match dates, item, amounts, postage costs, etc. (to

eliminate duplication and tendency to toss in personal expenditures).

I.4. Auditions, Screen Tests

(1) A large part of a performer's job-hunting expenses are deductible, but review

the documents for any personal expenses deducted.

I.5. Travel Between Auditions Is Deductible

(1) In other lines of work, the cost of traveling between job sites during the work

day is deductible; thus so is the cost of traveling between auditions. IRC §

274(d) Limits

(2) There is no IRC § 162 travel deduction allowed unless the taxpayer provides

substantiation.

I.6. Substantiation

(1) Get details, as shown in the taxpayer's own "adequate records," or by "sufficient

evidence" to corroborate the taxpayer's statement, for example, parking lot

receipts, travel log, etc.

I.7. Travel

(1) It is rare that an entertainer will have to travel out of town for a mere audition.

(An out-of-town producer who is casting a role will come to town or send a

casting director to conduct a series of auditions; if they want to interview that

actor specifically, they'll pay his or her travel expenses.) An actor who claimed

this unusual expense should have substantiation.

I.8. Telephone

(1) Telephone is probably a valid expense, at least in part; also an answering

machine, answering service, cell phone, beeper, call forwarding, etc. But insist

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on substantiation; allocate where appropriate (using month sampling). Int'l

Artists, Ltd. v. Commissioner, 55 T.C. 94, 105 (1970).

I.9. Unique Expenditures

(1) Once in a while, an actor or actress will have to incur an unusual cost, just for

one particular audition; for example, a lesson from a dialect coach to help him

or her prepare to try out for a certain part, some kind of special hairpiece (or

hair cut or color) or make-up for a screen test, not otherwise of any use to the

taxpayer. Request confirmation, details, and substantiation.

I.10. Entertainment, Gifts, etc., Claimed in Connection with Looking

for Work

(1) Actors or actresses rarely get jobs on the basis of gifts they've given to casting

directors. (If actors or actresses insist this practice is going on, audit of the

casting directors' returns should be initiated.)

• Request documentation in complete compliance with IRC § 274(d), and

then analyze the correlation between the gift, the recipient, and the

expected benefit to be derived.

• Observe the $25 limit on business gifts, and the 50 percent limit on meal

deductions. (See further discussion below.)

J. Union and Guild Dues

(1) Dues are almost certainly a legitimate deduction, assuming there is adequate

substantiation. Union and guild rules, standard contracts, phone numbers, etc.,

are available on the internet; do not hesitate to use them to double check

taxpayer's statements. Below are some of the links that specify the dues. Be

aware that they can vary because a percentage is often involved. Refer to the

following websites for more information:

• Screen Actors Guild–American Federation of Television and Radio

Artists (SAG- AFTRA)

• Writers Guild of America, West (WGAW)

• American Federation of Musicians (AFM), search the page for the local

union

K. Maintaining Skills, Image, Position, Etc.

(1) According to Hollywood myth, it's even harder to stay on top than to get there in

the first place. Thus, established performers may be entitled to certain

deductions for this purpose.

K.1. Public Relations, Promotion, Publicity

(1) The line between business and personal motives regarding these expenditures

is frequently unclear; insist on specificity.

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K.2. Publicity Manager, PR Firm, etc.

(1) Often valid, assuming there is good documentation. Review statements

received from service provider; inquire about value of services performed; ask

to examples (newspaper clippings, press coverage, magazine articles) of what

the expenditure bought and the results obtained therefrom (for example, a job);

otherwise, publicity just to maintain a public image is a personal choice and is

not deductible.

K.3. Deduction Controlled by IRC § 274(d)

(1) Even when a deduction for promotion, gifts, entertainment, etc. is proper, it is

allowed only to the extent the taxpayer presents thorough documentation; this

means records (preferably kept at or near time of expenditure) or other

corroboration of his or her statements. See Treas. Reg. §1.274-5T(b). The

taxpayer must show:

• Amount of each expenditure.

• Time and place of the entertainment, or date and description of the gift.

• Business purpose, including benefit expected.

• Identity of recipient of the entertainment or gift, and business relationship

between recipient and taxpayer.

(2) Note: Specificity is required. Dowell v. United States,522 F. 2d 708 (5th Cir.

1975); Smith v. Commissioner, 80 T.C. 1165,1172 (1983).

K.4. Compensation Paid to Managers and Others

(1) Successful entertainers frequently have an entourage; some of these

individuals perform "ordinary and necessary" functions, but others may just be

hangers-on, family members, etc.

K.5. Agent, Personal Manager, Other Professionals

(1) Big stars often need business managers, accountants, lawyers, secretaries,

and more. Analyze documentation for personal deductions.

(2) Request Details - Ask for a description of services performed; get copies of

contracts, detailed statements from lawyers, etc., proof of employment taxes

and wages paid out, etc.

(3) Analyze Services – IRC § 162(a): Were the services performed by these

individuals ordinary and necessary to the taxpayer's trade/business? Was the

cost reasonable? Be alert for:

• Whether the service-provider was perhaps a friend or relative?

("Compensation" may have been a disguised gift.)

• Whether any part of the services was of a personal nature? (Business

managers often look after the personal finances of their clients as well,

pay household bills, etc.)

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(4) Legal Expenses, Settlements - Deductibility of legal services and costs depends

on the origin of the claim or conflict. See, e.g., Harden v. Commissioner, T.C.

Memo. 1991-454 (football player's payments of hush money to ex-girlfriend, to

keep her from filing criminal charges was not a business deduction just because

he knew his team would have traded or released him if she had filed the

complaint).

K.6. Coach, Personal Trainer, Guru

(1) The general rule is that personal expenses are just not deductible. IRC § 262. A

personal, living or family expense is not deductible unless specified by the

Code. Treas. Reg. § 1.262-1.

L. IRC § 262 Take Precedence over IRC § 162

(1) IRC § 262 takes precedence over IRC § 162 and thus carves out exceptions to

what might otherwise be deductible expenses under IRC § 162. Sharon v.

Commissioner, 66 T.C. 515, 522-23 (1976), aff'd per curiam 509 F.2d (9th Cir.

1978), citing Commissioner v. Idaho Power Co., 418 U.S. 1, 17 (1974). IRC §

262; Bodzin v. Commissioner, 60 T.C. 820 (1973), rev'd 509 F.2d 679 (4th Cir.

1975), cert denied 423 U.S. 825 (1975). This means the taxpayer has the

burden to prove that the expenditure was not personal.

L.1. Taxpayers Have the Burden of Proof

(1) In Welch v. Helvering, 290 U.S. 111, 115 (U.S. 1933) the burden of proof is on

the taxpayer. The statement is that "his [commissioner] ruling has the support of

a presumption of correctness, and the petitioner has the burden of proving it to

be wrong." Many cases start by establishing that, citing Welch, and then

proceed to determine if the taxpayer has done that. This concept is also in

Rules of Practice and Procedure of the United States Tax Court, Rule 142(a).

L.2. Taxpayers Rarely Can Carry Their Burden

(1) Amend v. Commissioner, 55 T.C. 320, 325-26 (1970), aff'd, 454 F. 2d 399 (7th

Cir. 1971) (some expenses - in that case a Christian Science counselor on staff

- are so "inherently personal" they simply cannot qualify for IRC § 162 treatment

irrespective of the role they play in the taxpayer's trade or business); Sieber v.

Commissioner, T.C. Memo. 1979-15 (taxpayer, who was in the construction

business, played polo in order to meet potential clients; costs not deductible,

since he could not prove the activity was primarily business and not social, nor

could he show proximate connection between polo and his business). Hamper

v. Commissioner, T.C. Summary Opinion 2011-17 disallowed clothing, hair,

makeup, gym membership, etc. for a news anchor on the premise that they are

inherently personal.

M. Bodyguards, Security Services

(1) Physical security is also too personal an item to be deducted, unless there is a

clear business- related purpose to the service, for example, to control fans,

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paparazzi during a star's personal appearance (but for such occasions, the

producer of the event would probably bear those costs, since the security of all

would be the producer's responsibility).

M.1. Bodyguard

(1) See Holmes v. Commissioner, T.C. Memo. 1983-442 (no deduction for

bodyguard expenses for protection of diplomat's household while posted in

Quito, Ecuador). Generally, bodyguard services are personal; however, there

could be circumstances that would allow this deduction on occasional bases.

For example, attendance at award ceremonies when nominated or performing

at a concert (for which the producer does not provide security) may result in

allowable deductions.

M.2. Home Security

(1) Ordinary and necessary expenses paid or incurred in connection with the

management, conservation, or maintenance of property held for use as a

residence by the taxpayer are not deductible. Treas. Reg. § 1.212-1(h). See

Contini v. Commissioner, 76 T.C. 447, 453 (1981) (expenses disallowed

because taxpayers could not prove home was held for investment purposes).

N. Specific Items May Be Business-Related

(1) In Holmes v. Commissioner, T.C. Memo. 1983-442, a business deduction may

be proper for certain security items installed in the home for business reasons,

such as a fire-proof safe in which to keep office documents. But see Semp v.

Commissioner, T.C. Memo. 1981-706 (handguns were clearly an

"extraordinary" expense, in spite of taxpayer's contentions that as an insurance

salesman he was obliged to travel in dangerous neighborhoods).

N.1. Keeping Up Skills, Status, Image, etc.

(1) Entertainers may believe that, because they have to make certain expenditures

in order to "stay on top," these items should be deductible as business

expenses; nevertheless, most of these items typically overlap too much with

personal expenses to constitute valid business deductions.

N.2. TV, Movies, Theatre, Cable TV Expenses

(1) IRC § 274 places strict limits on deductions for items "generally considered to

constitute amusement, entertainment, or recreation." Such items are thus

deductible only where there is a clear tie to particular work.

N.3. Everyday Items

(1) Generally, there is no deduction for the things everybody buys, such as concert

tickets or cable fees. In Noland v. Commissioner, 269 F.2d 108 (4th Cir. 1959),

the Court held that a businessman could deduct the Wall St. Journal, but not

Time Magazine; by that standard, an actor can deduct the Hollywood Reporter

but not TV Guide.

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N.4. Specific Occasions

(1) IRC § 274 requires a "direct relation" to active conduct of taxpayers' trade or

business: Walliser v. Commissioner, 72 T.C. 433, 441-42 (1979). The taxpayer

must supply names, dates, etc., IRC § 274(d).

N.5. Limits

(1) Even where a deduction for a particular event is allowed, such as theatre ticket

to a certain play in order to research an upcoming film role, only one ticket

would be deductible; taking a guest would be a purely personal cost.

N.6. Screenings

(1) Writers Guild, Directors Guild, and various professional groups offer regular

screenings of new releases to members; thus membership fees paid by the

taxpayer may already cover at least some of these "necessary" expenses.

O. Ongoing Training to Keep Up Skills

(1) This may be an ordinary and necessary business expense, similar to CPE for

lawyers and accountants. Elliot v. United States, 250 F. Supp. 322 (DCNY,

1966) (Concert harpist could deduct cost of lessons to maintain proficiency.)

O.1. Who Is Eligible

(1) The taxpayer must already be employed or self-employed in a trade, business,

or profession. See Treas. § Reg. 1.162-5(b).

O.2. What is Eligible

(1) Education expenditures are deductible as ordinary and necessary business

expenses (even though the education may lead to a degree) if falls under one

of two categories:

(2) Maintains or improves skills required by the individual in his employment or

other trade or business. Treas. Reg. § 1.162-5(a)(1). The taxpayer must

demonstrate a connection between the course of the study and his particular

job skills. Takahashi v. Commissioner, 87 TC 126-130-31 (1986), OR

(3) Meets the express requirements of the individual's employer. Treas. Reg. §

1.162-5(a)(2). AND, Meets the Two-Prong Test - There is a double hurdle

regarding the type of education or training which may be deducted, even if the

expenses fall under the two categories, above.

• Not for basic skills already in use - The expense may not be to learn the

skills that qualified the taxpayer for the job already held. Treas. Reg. §

1.162-5(b)(2). AND

• Not to qualify for new trade or business – The expense not be one that

qualifies the taxpayer for a new trade or business. Treas. Reg. § 1.162-

5(b)(3); Callender v. Commissioner, 75 T.C. 334 (1980); Kroyt v.

Commissioner, T.C. Memo. 1961-322 (concert artists could not deduct

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the cost of learning to play a new instrument). Unique situations may

arise in the entertainment field.

(4) The above test probably means a sports announcer cannot deduct the cost of

tap dancing lessons, a mime cannot deduct the cost of elocution lessons.

P. Cost of Owning and Maintaining Airplane, Motorcycle, Horses

(1) The equipment used by actors or actresses, stunt persons, and many others in

movies and television is often what others would see as "toys." Taxpayers'

claims that their expenditures on these items are business-related may

arguably have some truth; but these items also present so great an opportunity

for abuse that they merit careful scrutiny of the particular facts and

circumstances of each case.

P.1. Background

(1) Court cases have addressed the deductibility of airplane expenses in many

different settings; the outcome has typically turned on the issue of just how

ordinary and necessary the plane was to the operation of the taxpayer's trade or

business.

(2) As Transportation - One clear business connection is where the plane is

needed for transport. Palo Alto Town & Country Village, Inc. v. Commissioner,

565 F. 2d 1388 (9th Cir. 1977) (taxpayer convinced the court of the business

value of having the plane standing by at all times); Sartor v. Commissioner, T.C.

Memo. 1984-274 (taxpayer proved the plane expenses were necessary and

ordinary to his business as a salesman); Ballard v. Commissioner, T.C. Memo.

1984-662 (deduction denied in part, where commercial flights would have done

just as well, and would have cost less).

(3) Education to keep up flying skills - Another line of cases analyzed the issue in

light of the taxpayers' alleged need to "maintain or improve" their flying skills for

purposes of their trade or business. See, e.g., Boser v. Commissioner, 77 T.C.

1124 (1981).

• "Ordinary and necessary" - When flying expenses are deducted as IRC

§ 162 educational expenses, the taxpayer must show they were

"ordinary," which means "normal, usual, or customary" in the taxpayer's

trade or business. Perfetti v. Commissioner, T.C. Memo. 1983549, aff'd

on this issue, 762 F. 2d 638 (8th Cir. 1985); Stoddard v. Commissioner,

T.C. Memo. 1982-720.

• "Reasonable" - Inherent in the concept of "necessary" is the requirement

that the amount of the expenditure be reasonable in relation to its

purpose; where expenditure is excessive, only the portion which is

reasonable may be deducted. United States v. Haskel Engineering &

Supply Co., 380 F.2d 786, 788-89 (9th Cir. 1967).

• Relationship to trade/business - The burden of proof is on the taxpayer

to show "a direct and proximate relationship" between the use of his or

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her own plane and the performance of his or her duties in his or her

trade or business. Carroll v. Commissioner, 51 T.C. 213, 218 (1968),

aff'd, 418 F.2d 91 (7th Cir. 1969).

• Income-producing Property, IRC § 212 - Instead of IRC § 162, the

taxpayer may invoke IRC § 212, contending that the plane, car or horse

was "income producing property," the upkeep of which is deductible

under IRC § 212. Ask for history of the income earned by this property

(presumably rentals). The taxpayer's argument that the property was

held for the production of income is subject to an IRC § 1.183-type

analysis, to make sure the ownership was, in fact, profit-motivated.

P.2. Listed Property

(1) IRC § 280F - Under IRC § 280F(d)(4)(A), passenger cars, computers, other

transportation property, and any property generally used for entertainment,

recreation, and amusement, are "listed property." (No reason to think this

doesn't include horses.) Tax benefits claimed in connection with this kind of

property are strictly limited.

(2) Where the taxpayer is an employee - Under IRC § 280F(d)(3), an employee can

get the tax benefits of "listed property" only to the extent it can be shown that:

• The property was used for the convenience of the employer, and

• The property was required as a condition of his employment.

(3) Computers - Computers and peripherals are fully deductible (and eligible for

IRC § 179 expensing) only if used exclusively at the taxpayer's regular business

establishment (including a home office, if IRC § 280A requirements are met).

IRC § 280F(d)(4)(B). Otherwise, they are "listed property" and tax benefits are

subject to strict recordkeeping (showing business versus personal use).

Computers and related peripheral equipment placed in service after 2017, in tax

years ending after 2017, are no longer treated as listed property.

(4) MACRS depreciation: only on "Qualified Business Use" Property - Unless the

"qualified business use" (which means actual use in the taxpayer's trade or

business) of the property is more than 50 percent, the taxpayer may only use

"alternative depreciation system" (IRC § 168(g): straight line) and may not claim

IRC § 179 expensing elections. The percentage of business use is gauged by

time spent in actual use. Treas. Reg. § 1.280F-6.

(5) Employee expenses for transportation and for the depreciation of certain listed

property (such as computers placed in service before 2018) paid or incurred in

a tax year beginning after December 31, 2017, and before January 1, 2026,

may not be claimed as a miscellaneous itemized deduction subject to the 2%

floor.

P.3. Identify the taxpayer's exact trade/business

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(1) In order to analyze the degree to which the taxpayer might be entitled to the

deduction for his or her plane, horse, motorcycle, etc., the first step is obviously

to identify his or her trade or business.

P.4. Employee (Form 2106 for unreimbursed expenses)

(1) If income was W-2, determine what he or she was employed as (for example,

stunt person, actor or actress, pilot, animal trainer, wrangler).

• The taxpayer can have more than one occupation;

• Review appropriate job contract(s), union contract(s); contact the union,

the producer, other third parties, if necessary;

• Which employer(s) does the taxpayer contend required him or her to

provide the property in question? For which job(s)? Was it truly for the

employer's convenience, rather than simply that the taxpayer preferred

to use his or her own (horse, motorcycle, etc.)? What part of the claimed

expenses were attributable to that job? Allocate as appropriate.

(2) Note: "Requirement of employment," "employer's convenience" depends on

facts and circumstances. A mere statement from the employer is not sufficient.

Treas. Reg. § 1.280F-6.

(3) No intermingling - Don't mix employee deductions with independent contractor

deductions; IRC § 280F requires separate treatment. Furthermore, assume

expenses were reimbursed by employer unless the taxpayer proves otherwise.

(4) Note: Employee expenses paid or incurred in a tax year beginning after

December 31, 2017, and before January 1, 2026, may not be claimed as a

miscellaneous itemized deduction subject to the 2% floor.

P.5. Schedule C Deductions

(1) Where the taxpayer has reported income and deductions on Schedule C(s), it is

equally necessary to clearly identify (each) trade or business (for example,

independent stunt coordinator, animal trainer, flight instructor).

(2) Income/deduction should agree - The source of the income should be

consistent with the deduction claimed; that is, if he or she is reporting income

for staging stunts, the services contract should not be for horse rentals.

Specifically match up each trade or business, each job, and each kind of

deduction claimed.

P.6. "Qualified business use" limitation on depreciation

(1) As stated above, in order for MACRS depreciation to be allowed, at least 50

percent of the use of the property in question must have been in a trade or

business of the taxpayer.

(2) Break out each trade/business – There should be a separate Schedule C for

each trade or business: for example, horse expenses cannot offset auto racing

income.

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(3) Analyze - Ask lots of questions and use common sense on personal use: for

example, if there were kids in the family, they may have ridden the taxpayer's

horses; a local traffic reporter with a faraway vacation home may have used his

or her plane to get there.

(4) Interaction with IRC § 183 - Facts such as un-businesslike operation and

consistent losses may suggest lack of a profit motive. Each Schedule C must

stand on its own with respect to IRC § 183.

(5) No loose ends - In analyzing and matching income and deductions from various

sources verify that the taxpayer has reported all income properly and not

omitted reimbursements; for example, if he or she was required to bring his or

her horse to a job, was he or she reimbursed for the cost of horse trailer, feed?

P.7. Personal Services Corporation

(1) IRC § 280F applies only to taxpayers who are individuals and S-Corporations.

Where the taxpayer functions through a C-Corporation, these strict provisions

do not come into play.

(2) Actual connection not enough - As stated above, an actual connection between

the property and the taxpayer's trade or business is not enough: use of that

property must be ordinary and necessary within that taxpayer's profession. For

example, how many stunt persons specialize in flying stunts? How many of

those own their own planes? How many flying stunts has this taxpayer worked

on? How much of total income was derived from stunt flying?

(3) Entertainment/recreation/amusement property - When the property in question

was used not on camera or for the taxpayer's technical skills but for actual

recreation, for example, to entertain a network vice-president or a prospective

investor, the special substantiation rules of IRC § 274(d) must be satisfied.

Q. Physical Fitness

(1) Expenses for physical fitness are deductible only to the extent they are linked to

the specific requirements of the taxpayer's work - a particular job, or type of job.

It is up to the taxpayer to prove this linkage.

(2) Health Club, Gym, Equipment, etc. - All such expenses are considered

personal, and thus not deductible, even if they do provide an overall benefit to

the taxpayer's trade or business. Rev. Rul. 78-128, 1978-1 C.B. 197 (law

enforcement officer could not deduct health club costs).

(3) Athletic, Sporting Club Dues - Moreover, dues paid to athletic, sporting (and

social) clubs are treated the same as entertainment and recreation expenses

(IRC § 274(a)(2)), and are thus subject to the special substantiation rules of IRC

§ 274(d).

(4) Possible Allowance of Deduction - Fitness expenses might be deductible in

certain situations, where there is a specific connection with the taxpayer's trade

or business.

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• Particular job - For example, an actor or actress gets a role in a martial

arts movie and has to learn Karate. (IRC § 274(d) substantiation

requirements would have to be satisfied, of course.)

• Specialty associated with the taxpayer's success - In certain instances, a

special skill is so associated with an entertainer's or athlete's success

that its maintenance is akin to keeping up professional skills; for

instance, a Mr. Universe-turned-actor might be required by the nature of

his employment (type of roles) to keep up his body building and

weightlifting skills. Another example might be an Olympic ice skater who

becomes a professional ice-skating star.

R. Wardrobe

(1) It is well-accepted that clothing is deductible as a business expense only where:

• It is required by the employer or essential to the taxpayer's employment;

• It is not suitable for general wear or use away from work; and

• It was not, in fact, worn while away from work.

(2) Refer to Hynes v. Commissioner, 74 T.C. 1266, 1290 (1980); Yeomans v.

Commissioner, 30 T.C. 757, 767 (1958).

R.1. Lenient Policy

(1) Formerly, courts were more lenient. A line of cases from several decades ago

established a lenient policy with respect to wardrobe deductions:

(2) Deductions by entertainers - E.g., Nelson v. Commissioner, T.C. Memo. 1966-

224 (Ozzie & Harriet were permitted to deduct the clothes they wore on their TV

show even though they were suitable for general use;) See also Denny v.

Commissioner, 33 B.T.A. 738 (1935) (clothes were "theatrical costumes");

Fisher v. Commissioner, 23 T.C. 218 (1954), aff'd 230 F.2d 79 (7th Cir. 1956)

(night club pianist could deduct cost of tuxedos).

(3) Deductions by taxpayers in other lines of work - Leading cases typically

involved specialized occupations. E.g., Meier v. Commissioner, 2 T.C. 458

(1943) (nurse could deduct uniforms, due to extra "sanitary" requirements of

job); Harsaghy v. Commissioner, 2 T.C. 484 (1943) (taxpayer not allowed to

wear uniform off the job, thus could deduct costs).

R.2. Current Standards

(1) Today's standards are different. Perhaps because a wider variety of clothes are

in fact suitable for general wear today, denial of a clothing deduction has

become the norm. E.g., Pevsner v. Commissioner, 628 F. 2d 467 (5th Cir.

1980) rev'g T.C. Memo. 1979-311 (boutique saleswoman could not deduct

expensive clothes even though they were required for the job and never worn in

personal life, because they were, in fact, suitable for general use); Mella v.

Commissioner, T.C. Memo. 1986-594 (professional tennis player was not

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permitted to deduct cost of tennis togs, since objectively they were suited for

general use).

R.3. Working Conditions Hard on Clothes; Need More Frequent

Replacement

(1) A taxpayer may think because his or her particular occupation is exceptionally

hard on his or her clothes that he or she is entitled to a deduction, but this is not

so.

(2) Protective wear is deductible - Equipment or special clothing required by certain

jobs, which does not take the place of other clothing is deductible, for example,

makeup artist's smock, asbestos underwear worn by stunt person for fire scene.

Kozera v. Commissioner, T.C. Memo. 1986-604 (special electrician's "bunny

boots" deductible); Jeffers v. Commissioner, T.C. Memo. 1986-285 (for

taxpayer who was a pipefitter, steel-toed boots were deductible but jeans were

not).

(3) Unusual wear and tear - There is no deduction, however, simply because a

taxpayer's job causes unusual wear and tear on regular clothes. Drill v.

Commissioner, 8 T.C. 902 (1947); Henry v. Commissioner, T.C. Memo. 1971-

50. Hawbaker v. Commissioner, T.C. Memo. 1983-665 (no deduction for auto

salesman's suits which he was required to wear and which got unusually dirty

and greasy on the job).

R.4. Care of Wardrobe

(1) Generally, where the cost of the work clothes is deductible, so is the cost of

their cleaning. Mortrud v. Commissioner, 44 T.C. 208 (1965).

R.5. Adequate Proof: Substantiation and Documentation

(1) The requirements are not as strict regarding IRC §162 expenses as they are

with respect to IRC § 274. While original bills and cancelled checks are always

preferable, they are not an absolute necessity. Consider all the surrounding

circumstances. See Campbell v. Commissioner, T.C. Memo. 1992-66. (A

deduction was allowed where the taxpayer, a plastics technician, "testified

credibly" that he wore out two pairs of protective work boots in a year.)

S. Grooming and Other Personal Items

(1) As a rule, these items are too personal; they will generate a business deduction

only in the presence of very special circumstances.

S.1. Make-up, Haircuts

(1) There may be a possible deduction for stage make-up (with substantiation that

taxpayer was required to purchase it, did purchase it, and never wore it

offstage), but it's a narrow exception. E.g., Drake v. Commissioner, 52 T.C. 842

(1969) supra.

S.2. Toupee

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(1) Probably too personal to yield a business deduction; possible exception where

the taxpayer presents abundant evidence that he wore the toupee exclusively

while working.

S.3. False Teeth, Hearing Aids, etc.

(1) False teeth, hearing aids, etc. are considered extremely personal, and thus

usually not deductible. Courts divided; a fact intensive issue - Some courts have

been lenient on deductions for the various needs of actors or actresses, for

example, Denny v. Commissioner, 33 BTA 738 (Court allowed deduction for

replacement dental work, also wigs, costumes, etc.). Others have not:

Sparkman v. Commissioner, 112 F.2d 774 (9th Cir. 1940). (No deduction for

actor's dentures, even though he needed them for enunciation; "taxpayer did

not prove the teeth were used for business purposes only.")

(2) Generally, few personal deductions are allowed, even where arguably business

related - See, e.g., Bakewell v. Commissioner, 23 T.C. 803 (1955). (No

deduction for hearing aid needed by courtroom lawyer.)

T. Business-related Medical Expenses

The IRC § 213(a) limits the amount of medical expenses that can be deducted.

The limitation has changed throughout the years. For example, in 2021, only

medical expenses above 7.5% adjusted gross income could be deducted,

whereas in 2017, the threshold percentage was 10%. In years the percentage is

higher, taxpayers may argue that certain medical expenditures are business-

related.

(1) Cosmetic Surgery – IRC § 213(d)(9) now prohibits a medical deduction for face

lifts, hair transplants, and any other procedure directed merely at "improving the

patient's appearance," thereby providing still further motivation for on-camera

performers to claim such items under IRC § 162, unless, as in Hess v.

Commissioner (T.C. Summary Opinion 1994-79) the cosmetic surgery is

considered detrimental to the taxpayer outside of their career.

(2) IRC § 213(d)(9) does allow an exception for expenses to "ameliorate a

deformity arising from, or directly related to, a congenital abnormality, a

personal injury resulting from an accident or trauma, or disfiguring disease".

(3) Medical Treatment - Rarely allowed as business expense; for example, Rev.

Rul. 71-45, 1971-1 C.B. 51 (singer's costs of throat treatments allowed as

medical, not business, expense).

(4) Insurance - Note that health coverage for Hollywood union and guild members

is very good; it is unlikely that a member of, say, SAG-AFTRA, had any

uncompensated medical expenses sufficient to generate a Schedule A

deduction.

U. Extravagance, in General

U.1. Not Limited to Lowest Price

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(1) Show business folks sometimes like to splurge. The reasonableness of the

price a taxpayer chooses to pay for goods and services is determined by fact

and circumstances: what is lavish and extravagant to one taxpayer, maybe

normal to another taxpayer.

U.2. Compensation for Services

(1) A deduction for salaries or fees for personal services is limited to a "reasonable

allowance" for "services actually rendered." IRC § 162(a)(1). The test of

reasonableness depends on facts and circumstances. However, as discussed

under Personal Service and Personal Holding Companies (Loan Outs), wages

to shareholder/artist are not subject to limitations.

U.3. Exception: Lavish Food and Drink

(1) IRC § 274(k) provides that food and beverages are not deductible if they were

"lavish or extravagant under the circumstances" or if the taxpayer was not

present. See IRC § 162(a)(2). Also see discussion under Chapter 7,

Recordkeeping Issues.

U.4. Amount May Indicate Motives

(1) The amount spent may be relevant to determining whether the expenditure was

primarily for business or personal motives; for instance, if it looks as if that

audition in New York may be an excuse to deduct the cost of a luxury trip.

Consider reasonableness" in relation to the purported business purpose of the

item. United States v. Haskel Eng. & Supply Co., 380 F. 2d 786, 788-789 (9th

Cir. 1967); Harbor Medical Corp. v. Commissioner, T.C. Memo. 1979-291.

U.5. Use of Home for Business Purposes

(1) This issue often arises in the entertainment industry, where business and

personal lives intermingle to so great an extent.

U.6. Home Office Deduction

(1) IRC § 280A severely restricts the deduction for office in the home. To claim a

deduction for business use of a taxpayer's personal residence under IRC §

280A(c)(1), the taxpayer must establish that a portion of his dwelling unit is (1)

exclusively used, (2) on a regular basis, (3) qualified business purposes under

IRC § 280A(c)(1) (either principal place of business, place to meet with patients,

etc., separate structure, or designated storage space for inventory), and (4) if

the taxpayer is an employee, the office is maintained for the convenience of the

employer. Hamacher v. Commissioner, 94 T.C. 348, 353-354 (1990).

(2) Principal Place of Business - The most frequent of the above issues in the

entertainment industry, is the principal place of business. In Commissioner v.

Soliman, 506 168, 175-177, (1993), the Supreme Court laid out a two-part test

to determine whether a taxpayer's residence qualifies as a principal place of

business: (1) the relative importance of the activities undertaken at each

business location; and (2) the time spent at each location. However, after the

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Supreme Court's decision in Soliman, Congress added language following IRC

§ 280A(c)(1)(C), to define "principal place of business" for tax years after 1998,

as including "a place of business which is used by the taxpayer for the

administrative or management of any trade or business of the taxpayer if there

is no other fixed location of the trade or business where the taxpayer conducts

substantial administrative or management activities of such trade or business."

The Taxpayer Relief Act of 1997, Pub. L. No. 105-34, § 932(a), 111 Stat. at

881; Thunstedt v. Commissioner, T.C. Memo 2013-280; Beale v.

Commissioner, T.C. Memo 2000-158.

U.7. Result May Depend on Status of Taxpayer

(1) An independent contractor may deduct a portion of his or her home only if it is

his or her principal place of business, used by clients, patients, or customers, or

is a separate structure. IRC § 280A(c). An employee may deduct the expense

of a home office only where it's for the convenience of the employer. Note that

Schedule A miscellaneous itemized deductions for unreimbursed employee

expenses have been eliminated by the Tax Cuts and Jobs Act for tax years

2018 through 2025. However, certain low-income entertainers (Qualified

Performing Artists) are still permitted to deduct their expenses "above the line,"

that is, for purposes of arriving at AGI. IRC § 62(a)(2)(B)

U.8. Corporate Taxpayer

(1) Individuals who have formed a personal service C- corporation may still deduct

business use of their home, but the creation of the corporate entity would give

rise to separate issues, for example, it would have to rent the premises from the

entertainer. See, e.g., Int'l Artists, Ltd. v. Commissioner, 55 T.C. 94 (1970).

(Liberace's corporation deducted expenses of a screening room, wardrobe,

theatrical lighting, concert stage, etc., in the stars Harold Way home; but the

corporation paid him rent for it.)

(2) There is a PAL issue regarding rent of an individual to his corporation. Per

Treas. Reg. § 1.469-2(f)(6), income from rental to an entity in which the

taxpayer materially participates is deemed to be non-passive. Losses are still

passive.

U.9. "Listed Property" IRC § 280F

(1) Note that personal computers and property generally used for recreation,

amusement, and entertainment are all among the IRC § 280F listed property

categories. All business deductions and credits arising from "listed property" are

subject to the IRC § 274(d) special substantiation rules.

V. Miscellaneous

V.1. Uniform Capitalization Rules

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(1) Exception – IRC § 263A(h) - Beginning after 1986, "creative individuals" may

depreciate "qualified creative expenses." Notice 8862, 1988-1 C.B. 548. Also

see Chapter 4, Capitalization and Cost Recovery Issues, for more information.

V.2. Special Treatment

(1) Taxpayers who qualify under this provision are exempt from the uniform

capitalization requirement. They may deduct "qualified creative expenses,"

instead of having to capitalize them.

V.3. Who Is Eligible

(1) This provision applies to freelance authors, photographers, artists, and other

creative individuals. They must either be self-employed or work through a

personal service corporation.

V.4. “Qualified Creative Expenses"

(1) These are the expenditures incurred by a creative individual in producing a

creative property through his or her own efforts. They encompass:

• Expenses paid or incurred in the taxpayer's trade or business (other than

as an employee);

• Which would otherwise be deductible, were it not for the uniform

capitalization rule.

• "Qualified creative expenses" do not include expenses related to

printing, motion picture films, disks, etc., because these are reproduction

and distribution expenses.

V.5. "UNICAP" - Earlier Years

(1) For years before 1987, or for taxpayers who are not "creative individuals," the

costs of producing creative properties may not be amortized until the project is

placed in service. In other words, costs are capitalized and there is no current

deduction for the costs of producing or acquiring property prior to the year in

which it can begin generating income. IRC § 263A. Cost recovery is then based

on the income forecast method. Siegel v. Commissioner, 78 T.C. 659 (1982).